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THE WEST VIRGINIA TRIAL COURT RULES
CHAPTER
1: ADMINISTRATIVE MATTERS
1. EFFECT OF RULES OF
GENERAL PRACTICE; DEFINITIONS
1.01 Matters
of Statewide Concern
1.02 Repeal of
Local Rules
1.03 Authority to
Enact Local Rules on Matters Which Are Strictly Local
1.04
Definitions
2. TERMS OF COURT
3. COURT SESSIONS
3.01 Generally
3.02 Opening
Court
3.03 Court
Security
4. COUNSEL
4.01 Admission to
Practice Before the Courts
4.02 Visiting
Attorneys; Pro Hac Vice Admission
4.03
Representation of Parties and Pro Se Appearances
4.04 Substitution
of Counsel by Stipulation
4.05 Legal
Assistance by Law Students
4.06 Bias and
Prejudice
4.07 Attire for
Court Appearances
4.08
Addressing the Court; Examination of Witnesses
4.09 Contact with Jurors
4.10 Ex Parte
Presentations; Duty to Court
5.01 Purpose
5.02 General
Priorities
5.03
Additional Factors
5.04 Notice of
Conflict
5.05
Resolution of Conflict
6. MOTIONS PRACTICE, GENERAL
6.01 Form of Memoranda,
Motions and Other Papers
6.02 Citation Form
6.03 Copies of
Memoranda
6.04 Copies of
Cases and Statutes
7.01 Master
List
7.02 Jury
Wheel or Jury Box
7.03 Jury
Panels and Pools
7.04
Magistrate Court Juries
8. CAMERAS, AUDIO EQUIPMENT AND MEDIA IN THE COURTROOM
8.01 Permission
of the Court Required
8.02 Procedure
to Obtain Permission
8.03
Termination of Coverage
8.04 Scope of
Coverage
8.05 Nonjudicial
Meetings
8.06 Equipment and
Personnel
8.07 Location
of Equipment
8.08 Pooling
Arrangements
8.09
Admissibility in Evidence
8.10 Prior
Approval to Identify or Video Jurors
9. CUSTODY AND DISPOSITION OF EXHIBITS
9.01 Generally
10. FILING AND REMOVAL
OF PAPERS; LIMITATION OF ACCESS TO COURT FILES
10.01 Filing of
Papers
10.02 Removal
of Papers and Files From Custody of Clerk
10.03
Limitation of Access to Court Files
10.04 Access
to Court Files and Other Court Records under the Freedom of
Information Act
11. CAPTION AND
FORMAT OF ORDERS
11.01 Captions
11.02 Format
12. FILING AND SERVICE BY FACSIMILE TRANSMISSION
12.01
Applicability
12.02
Definitions
12.03
General Provisions
12.04
Filing and Service of Documents in Civil Actions by Facsimile Transmission
12.05
Facsimile Transmission of Domestic Violence Petitions and Protective
Orders
12.06
Facsimile Transactions in Criminal Matters
13.01 Generally
(Note: By Order entered October 9, 2008, TCR 15 was approved, effective immediately.)
15.01 Application
15.02 General Provisions
15.03 Authorization and Signature
15.04 Filing and Service
15.05 Orders and Civil Docket
15.06 Waiver of E-Filing and Service Requirements
15.07 Public Access
15.08 Case Management Order
15.09 Registration and Fees
15.10 Form of documents electronically filed
15.11 Time of electronic filing and service
15.12 Filing of sealed documents
15.13 System or participant errors
15.14 Obligation of participants to maintain proper delivery information
(Note: By Order entered October 9, 2008, TCR 16.05(a) was amended, effective immediately.)
16.01 Purpose
16.02
Implementation
16.03
Definitions
16.04 Time
Standards for Criminal Cases
16.05 Time
Standards for Civil Cases
16.06 Domestic
Relations Proceedings
16.07 Juvenile
Delinquency Proceedings
16.08 Abuse
and Neglect Proceedings
16.09 Mental
Hygiene Proceedings
16.10
Guardianship and Conservatorship Proceedings
16.11
Petitions and Appeals
16.12
Extraordinary, Declaratory Judgment, and Equitable Proceedings
16.13 Duties
of Court Officers
17. DISQUALIFICATION AND TEMPORARY ASSIGNMENT OF JUDGES
17.01
Motions for Disqualification
17.02
Voluntary Recusal by a Judge
17.03
Temporary Assignment of a Different Judge
17.04
Applicability
17.05
Time
17.06
Challenge to Disqualification Rulings
17.07
Unavailability under W. Va. Code § 51-2-1(a)
17.08
Sanctions
18. RESERVED
19. RESERVED
CHAPTER 2: CIVIL MATTERS
20.01 Generally
21.02. Application Generally
21.02. Appointments Generally
21.03. Duties Generally
21.04. Definitions
21.05. Eligibility for a Supreme Court-Paid Guardian Ad Litem
21.06. Compensation for a Supreme Court-Paid Guardian Ad Litem
22.01 Motions,
Responses, and Supporting Memoranda
22.02 Motions
to Dismiss
22.03 Hearings
on Motions
22.04 Action on
Motions
22.05 Effect
of Failure to Appear at Oral Argument or Hearing
23.01 Non-Jury
Matters
23.02 Cases to
be Tried by a Jury: Proposed Jury Instructions; Proposed Verdict Form
23.03 Voir
Dire
23.04 Opening
Statements and Closing Arguments
23.05
Stipulations
24. PREPARATION AND SUBMISSION OF ORDERS
24.01 Generally
25.01
Scope
25.02
Mediation Defined
25.03
Selection of Cases for Mediation
25.04 Listing
of Mediators
25.05
Selection of Mediator
25.06
Compensation of Mediator
25.07 Mediator
Disqualification
25.08
Provision of Preliminary Information to the Mediator
25.09
Timeframes for Conduct of Mediation
25.10
Appearances; Sanctions
25.11
Participation
25.12
Confidentiality of Mediation Process
25.13 Immunity
25.14
Enforceability of Settlement Agreement
25.15 Report
of Mediator
25.16
Statistical Information
26. MASS LITIGATION
(Note, by Order entered October 9, 2008, TCR 26 was amended, effective immediately)
26.01 Mass
Litigation -- Preamble
26.02 Mass Litigation Panel
26.03 Application
26.04 Definitions
26.05 Panel Duties
26.06 Motion to Refer Actions as Mass Litigation
26.07 Assignment of Presiding Judge in Mass Litigation
26.08 Powers of Presiding Judge
26.09 Motion to Join in Existing Mass Litigation
26.10 Class Actions
26.11 Official Reporter
26.12 Scope; Conflicts
27. PUBLIC FUNDING FOR EXPERT ASSISTANCE IN CHILD
ABUSE
OR NEGLECT
CASES
27.01 Motion and Appointment
27.02 Compensation of Experts
28. Reasonable Efforts and Contrary to the Welfare Findings in Juvenile Cases
29. RESERVED
CHAPTER 3: CRIMINAL MATTERS
30.01 Hearing on
Motion for Reconsideration of Conditions of Release
30.02 Scheduling of
Hearings
30.03 Effect
of Having Been Released Previous to Indictment
31. BONDING AGENTS AND BAIL BONDS
31.01 Generally
32. DISCOVERY AND INSPECTION IN THE CIRCUIT COURTS
32.01
Generally
32.02
Mandatory Discovery
32.03
Discovery Conference
32.04
Items Not Subject to Disclosure
32.05
Continuing Duty to Disclose
32.06
Regulation of Discovery
32.07
Statement of Witnesses
32.08
Exchange of Exhibit Lists
32.09
Additional Motions for Discovery
33.01 State's Evidence
34.01
Authorization for Deposition
34.02
Incarcerated Defendants
35. PUBLIC FUNDING FOR EXPERT ASSISTANCE
35.01
Motion
35.02 Service
of Motion
35.03 Ex Parte
Motion
35.04 Judicial
Determination of Whether to Proceed Ex Parte
35.05
Compensation of Experts
36. MOTIONS PRACTICE, CRIMINAL
36.01
Generally
36.02 Motions
for an Extension of Time
36.03 Time for
Filing Motions
36.04 Time for
Filing Responses and Replies
36.05
Limitation on Memoranda
37.01
Authority
37.02
Motion for Speedy Trial
38.01 Procedure for Obtaining Continuance
39.01
Appointment
39.02 Duties
39.03
Compensation
40.01
Authority
40.02 Purpose
40.03
Attendance and Participation at the Pretrial Conference
41.01 Notice
of Change of Plea Hearing
42. TRIAL, CRIMINAL
42.01
Presentation of Statement of Facts and Potential Witnesses
42.02
Presentation of Jury Instructions
42.03 Voir
Dire
42.04 Opening
Statements and Closing Arguments
42.05
Stipulations
43. PRESENTENCE INVESTIGATION AND REPORT
43.01
Investigation, Report, and Objections
43.02
Disclosure
44. PETITION FOR DISCLOSURE OF
PRESENTENCE
OR PROBATION
RECORDS
44.01
Generally
APPENDICES:
Appendix A: NOTICE OF BOND ENCUMBRANCE
Appendix B: RELEASE OF NOTICE OF BOND ENCUMBRANCE
THE WEST VIRGINIA TRIAL COURT RULES
Reporter's Note: The following Trial Court Rules
apply in magistrate court as well as in circuit court: 5, 7.04, 8, 10.04,
12, and 31.01.
CHAPTER 1: ADMINISTRATIVE MATTERS
1. EFFECT OF LOCAL RULES OF GENERAL PRACTICE; DEFINITIONS
1.01 Matters of Statewide Concern
The West Virginia Rules of Civil Procedure, the West
Virginia Rules of Criminal Procedure, and the following rule subject areas called The West
Virginia Trial Court Rules are declared to be of statewide concern and shall preempt and
control in their form and content over any differing local rule.
1.02 Repeal of Local Rules
All circuit court local rules, including local procedures and standing orders having the effect of local rules, enacted before July 1, 1999, which are inconsistent with these Trial Court Rules or other rules of court are hereby repealed.
Any existing circuit court local rule not in conflict with these Trial Court Rules or other rules of court must be timely submitted to the Supreme Court of Appeals in accordance with TCR 1.03. Said rule shall remain in effect, until it is rejected by order of the Supreme Court of Appeals. Any existing local rule which is not submitted to the Supreme Court of Appeals prior to September 1, 1999, shall be repealed, effective September 1, 1999.
1.03 Authority to Enact Local Rules on Matters Which Are Strictly Local
Each court, and in multi-judge circuits by action of a majority of its judges, may from time to time propose local rules and amendments of local rules not inconsistent with the West Virginia Rules of Civil Procedure, the West Virginia Rules of Criminal Procedure, the West Virginia Trial Court Rules, or with any directive of the Supreme Court of Appeals of West Virginia. A proposed rule or amendment shall not be effective until approved by the Supreme Court of Appeals. No local procedure shall be effective unless adopted as a local rule in accordance with this section. To obtain approval, seven copies of any proposed local rule or amendment of a local rule shall be submitted to the Supreme Court of Appeals through the Office of the Clerk. Reasonable uniformity of local rules is required. Numbering and format of any proposed local rule or amendment of a local rule shall be as prescribed by the Supreme Court of Appeals. The Supreme Court of Appeals' approval of a local rule or local procedure shall not preclude review of that rule or procedure under the law or circumstances of a particular case.
1.04 Definitions
For the purpose of these Trial Court Rules:
(a) "Judicial officer" - A circuit judge.
(b) "Business days" - Days other than Saturdays, Sundays, and legal holidays as set forth in W.Va. R.Civ.P. 6(a).
(c) "Days," when not preceded by the adjective "business" - Calendar days counted sequentially, without regard for Saturdays, Sundays, legal holidays, or other exceptions.
(d) “Brief” - A statement of the law that supports a motion made by counsel or that opposes a motion made by another counsel.
(e) “Clerk” - The circuit clerk of any county in West Virginia or any deputy thereof and, in any rule applying in magistrate court, the magistrate court clerk or deputy.
(f) “Court” - circuit court. In addition, the term “court” may also mean magistrate court proceedings, when specific reference is made to magistrate court.
(g) “Counsel” - Any attorney who has made an appearance for any party, or any pro se litigant.
(h) “Judicial day” - any day, including any Saturday or legal holiday, other than Sunday.
(i) “Memorandum of Law” - see “Brief.”
(j) “Pleading” - A pleading permitted by W.Va. R.Civ.P.
7.
(k) “Pro Se” - representing one's self without counsel of record.
(l) “TCR” - Trial Court Rule(s).
(m) W.Va. R.Civ.P. - West Virginia Rules of Civil Procedure.
(n) W.Va. R.Crim.P. - West Virginia Rules of Criminal Procedure.
(o) W.Va. R.Evid. - West Virginia Rules of Evidence.
The terms of the circuit courts shall commence and be held each year as provided in this rule.
2.01 First Circuit. For the county of Brooke, on the first Monday in March, June, and November; for the county of Hancock, on the second Tuesday of January, April, and September; and for the county of Ohio, on the second Monday of January, May, and September.
2.02 Second Circuit. For the county of Marshall, on the second Tuesday in March, July, and November; for the county of Tyler, on the second Tuesday in February, June, and October; for the county of Wetzel, on the second Tuesday in January, May, and September.
2.03 Third Circuit. For the county of Doddridge, on the second Monday in February and July and the fourth Monday in October; for the county of Pleasants, on the second Monday in January, the third Monday in May, and the fourth Monday in September; for the county of Ritchie, on the fourth Monday in January, the first Monday in June, and the first Monday in October.
2.04 Fourth Circuit. For the county of Wirt, on the last Monday
in March, June, and September; for the county of Wood, on the second Monday in January,
May, and September.
2.05 Fifth Circuit. For the county of Calhoun, on the first
Tuesday in January, May, and September; for the county of Jackson, on the fourth Tuesday
in February, June, and October; for the county of Roane, on the fourth Tuesday in January,
May, and September.
2.06 Sixth Circuit. For the county of Cabell, on the first Monday in January and May, and the second Tuesday in September.
2.07 Seventh Circuit. For the county of Logan, on the second Monday in January, May, and September.
2.08 Eighth Circuit. For the county of McDowell, on the third Monday in February, June, and October.
2.09 Ninth Circuit. For the county of Mercer, on the second Monday in February, June, and October.
2.10 Tenth Circuit. For the county of Raleigh, on the second Monday in January, May, and September.
2.11 Eleventh Circuit. For the county of Greenbrier, on the first Tuesday in February, June, and October; for the county of Pocahontas, on the first Tuesday in April, August, and December.
2.12 Twelfth Circuit. For the county of Fayette, on the second Tuesday in January, May, and September.
2.13 Thirteenth Circuit. For the county of Kanawha, on the second Monday in January, May, and September.
2.14 Fourteenth Circuit. For the county of Braxton, on the
first Monday in February, June, and October; for the county of Clay, on the third Monday
in March, on the second Monday in July, and on the first Monday in November; for the
county of Gilmer, on the first Monday in March, July, and November; for the county of
Webster, on the second Monday in January, on the first Monday in May and September.
2.15 Fifteenth Circuit. For the county of Harrison, on the first
Monday in January, May and September.
2.16 Sixteenth Circuit. For the county of Marion, on the second
Monday in February, June, and October.
2.17 Seventeenth Circuit. For the county of Monongalia, on the
Thursday after the first Monday in January, May, and
September.
2.18 Eighteenth Circuit. For the county of Preston, on the first
Tuesday in March and June, and on the third Tuesday in October.
2.19 Nineteenth Circuit. For the county of Barbour, on the fourth Monday in February, May, and October; for the county of Taylor, on the second Monday in January, April, and September.
2.20 Twentieth Circuit. For the county of Randolph, on the last Monday in February, June and October.
2.21 Twenty-First Circuit. For the county of Grant, on the first Tuesday in March and November, and the second Tuesday in July; for the county of Mineral, on the second Tuesday in January, and the first Tuesday in May and September; for the county of Tucker, on the second Tuesday in February, and on the first Tuesday in June and October.
2.22 Twenty-Second Circuit. For the county of Hampshire, on the first Tuesday in January, May, and September; for the county of Hardy, on the first Tuesday in February, June, and October; for the county of Pendleton, on the first Tuesday in March, July, and November.
2.23 Twenty-Third Circuit. For the county of Berkeley, on the third Tuesday in February, May, and October; for the county of Jefferson, on the third Tuesday in January, April, and September; for the county of Morgan, on the first Tuesday in January, April, and September.
2.24 Twenty-Fourth Circuit. For the county of Wayne, on the first Monday in March, July, and November.
2.25 Twenty-Fifth Circuit. For the county of Boone, on the third Monday in January, April, and September; for the county of Lincoln, on the third Monday in January, April, and September.
2.26 Twenty-Sixth Circuit. For the county of Lewis, on the first Monday in March and November, and the second Monday in July; for the county of Upshur, on the second Monday in January, May, and September.
2.27 Twenty-Seventh Circuit. For the county of Wyoming, on the first Monday in February, May, and October.
2.28 Twenty-Eighth Circuit. For the county of Nicholas, on the
second Tuesday in January, May, and September.
2.29 Twenty-Ninth Circuit. For the county of Mason, on the first
Monday in January, May, and September; for the county of Putnam, on the first Monday in
March and on the second Monday in July and November.
2.30 Thirtieth Circuit. For the county of Mingo, on the third Monday in January, April, and September.
2.31 Thirty-First Circuit. For the county of Monroe, on the
second Tuesday in January and September, and on the third Tuesday in May; for the county
of Summers, on the first Tuesday in March and on the third Tuesday in July and
November.
3. COURT SESSIONS
3.01 Generally
The court is considered open and in continuous session in all divisions of the circuit court in accordance with the provisions of W.Va. R.Civ.P. 77 and other controlling statutes and rules.
Court proceedings may be conducted on any judicial day, as judicial day is defined in TCR 1.04(i). The effects of Saturdays, Sundays, and legal holidays for matters such as time computation are governed by W.Va. Code §§ 2-2-1 and 2-2-2 as well as by applicable rules promulgated by the Supreme Court of Appeals.
3.02 Opening Court
When the judge enters the room for the purpose of opening court, the sheriff, deputy, or designated bailiff shall say in a distinct voice: "Silence, all present will arise. The Judge of the _______ Court of _______ County." Then the sheriff, deputy, or designated bailiff shall make the following proclamation: "Oyez! Oyez! Oyez! Silence is now commanded under pain of fine and imprisonment, while the Honorable Judge _______________ of the ____________ Court of ____________ County, is sitting. All persons having motions to make, pleadings to enter or actions to prosecute come forward and they shall be heard. God save the State of West Virginia and this Honorable Court."
3.03 Court Security
A bailiff shall be present at all times while the court is in session.
The bailiff shall be either the sheriff or a deputy sheriff; but in any event, the bailiff shall be approved by the presiding circuit judge.
Upon request by the presiding circuit judge, the sheriff shall provide a sufficient number of bailiffs to maintain order in the courtroom at all times and to enforce the rules and orders of the court pertaining to conduct in the courtroom.
4.01 Admission to Practice Before the Courts
Any person admitted to practice before the Supreme Court of
Appeals of West Virginia and in good standing as a member of its bar shall be permitted to
practice before the courts of this State.
4.02 Visiting Attorneys; Pro Hac Vice Admission
Any person who has not been admitted to practice before the Supreme Court of Appeals of West Virginia, but who is a member in good standing of the bar of the Supreme Court of the United States, the bar of the highest court of any other state in the United States, or the bar of the District of Columbia (which bar shall extend like privileges to members of The West Virginia State Bar), shall be permitted to appear pro hac vice as a visiting attorney in a particular case, in association with a person admitted to practice before the Supreme Court of Appeals of West Virginia and in good standing as a member of its bar, in accordance with Rule 8.0 of the Rules for Admission to the Practice of Law and as herein provided. In addition to the other requirements of Rule 8.0 of the Rules for Admission to the Practice of Law, the verified statement of application shall contain an explicit statement that notice has been sent and the $250 fee has been paid to The West Virginia State Bar.
The court, at its discretion, may set the matter of pro hac vice admission for hearing.
Any pleading, motion, or other paper filed by a visiting
attorney not in compliance with this rule may be stricken from the record after fifteen
(15) days written notice mailed to the visiting attorney at his or her address as known to
the clerk.
4.03 Representation of Parties and Pro Se Appearances; Withdrawal
(a) Every party to proceedings before any court, except parties appearing pro se, shall be represented by a person admitted to practice before the Supreme Court of Appeals of West Virginia and in good standing as a member of its bar and may be represented by a visiting attorney as provided in Rule 4.02. A party appearing pro se shall, at his or her first appearance, file with the clerk their complete names and addresses where pleadings, notices, and other papers may be served upon them, and their telephone numbers.
(b) No attorney who has entered an appearance in any civil or criminal action shall withdraw the appearance or have it stricken from the record, except by order. Such approval shall rest in the sound discretion of the court, but shall not be granted until the attorney seeking to withdraw has made reasonable effort to give actual notice to the client:
(1) that the attorney wishes to withdraw;
(2) that the court retains jurisdiction;
(3) that the client has the burden of keeping the court informed where notice, pleadings, or other papers may be served;
(4) that the client has the obligation of preparing for trial or hire other counsel to prepare for trial when the trial date has been set;
(5) that if the client fails or refuses to meet these burdens, the client may suffer possible default;
(6) that the dates of any proceedings, including trial, and the holding of any such proceedings will not be affected by the withdrawal of any counsel;
(7) that service of process may be made upon the client at the client's last known address; and
(8) of the client's right to object immediately to attorney's intent to withdraw.
The attorney seeking to withdraw shall prepare a written notification certificate stating that the above notification requirements have been met, the manner by which such notification was given, and setting forth the client's last known address and telephone number. Before the court permits the withdrawal, the court may set the matter for hearing, at which time the client shall be notified by the withdrawing attorney of the effective date of the withdrawal. If the court permits the withdrawal without a hearing, the client shall be notified by the withdrawing attorney of the effective date of the withdrawal. Following effective withdrawal of the attorney, all pleadings, notices, or other papers may be served on the party directly by mail at the last known address of the party until new counsel enters an appearance.
4.04 Substitution of Counsel by Stipulation
A stipulation for substitution of counsel shall:
(a) bear the written approval of the client;
(b) bear the signed statement by the substituting attorney consenting to the substitution and stating that the substituting attorney is advised of the trial date and will be prepared for trial on such date; and
(c) be accompanied by a proposed written order, which may be presented ex parte; and
(d) be served upon opposing counsel.
4.05 Legal Assistance by Law Students
Legal assistance by law students shall be governed by Rule 10.0 et seq. of the Rules for Admission to the Practice of Law.
At the law student's first appearance, he or she shall provide a copy of the Rule 10.0 certificate to the judicial officer.
4.06 Bias and Prejudice
The West Virginia Supreme Court of Appeals aspires to
achieve absolute fairness in the determination of cases and matters before all the courts
of this State and expects the highest standards of professionalism, human decency, and
considerate behavior toward others from its judicial officers, lawyers, and court
personnel, as well as from all witnesses, litigants, and other persons who come before the
courts. As to matters in issue before any court, conduct and statements toward one another
must be without bias with regard to such factors as gender, race, ethnicity, religion,
handicap, age, and sexual orientation when such conduct or statements bear no reasonable
relationship to a good faith effort to argue or present a position on the merits. Judicial
officers must ensure that appropriate action is taken to preserve a neutral and fair forum
for all persons. Nothing in this rule, however, is intended to infringe unnecessarily or
improperly upon the otherwise legitimate rights, including the right of freedom of speech,
of any person, nor to impede or interfere with the aggressive advocacy of causes and
positions by lawyers and litigants.
4.07 Attire for Court Appearances
Counsel shall at all court appearances present themselves attired in a manner befitting their profession and indicative of their respect for the court, and shall admonish their clients and witnesses concerning inappropriate courtroom attire.
4.08 Addressing the Court; Examination of Witnesses
A court may direct that counsel stand when addressing the court. Only one counsel for each party may participate in examination and cross-examination of a witness. With the court's permission, counsel may approach a witness.
Rule 4.09. Contact with Jurors.
No party, nor his or her agent or attorney, shall communicate or attempt to
communicate with any member of the jury or any member of the juror's immediate family
who resides in the same household, until that juror has been excused from further service
for a particular term of court, without first applying for (with notice to all other parties)
and obtaining an order allowing such communication. The application shall contain a
description of the proposed contact, and an executed certificate by each person involved
that no inappropriate contact will be made. The circuit court shall liberally grant the
request.”
4.10 Ex Parte Presentations; Duty to Court
In the event that any ex parte matter has been presented to
any judicial officer and the requested relief is denied for any reason, such matter shall
not be presented to any other judicial officer without making a full disclosure of the
prior presentation.
Reporter's Note: TCR Rules 5.01 - 5.05 apply in magistrate
court as well as in the other courts referenced in TCR 5.01.
5.01 Purpose
These rules have been adopted in order to provide a uniform
standard for the resolution of scheduling conflicts between and among State and federal
magistrate, trial and appellate courts and federal bankruptcy courts of West Virginia.
5.02 General Priorities
In resolving scheduling conflicts the following priorities should ordinarily prevail: (a) appellate cases should prevail over trial cases; (b) criminal felony trials should prevail over civil trials; (c) cases in which the trial date has been first set (by published calendar, order or notice) should take precedence over cases which were set later; (d) trials should prevail over hearings, and hearings should prevail over conferences; and, (e) trials and hearings of a judge in travel status should prevail over trials and hearings of a judge sitting in residence.
5.03 Additional Factors
In addition to the priorities set forth in TCR 5.02, consideration should be given to the following factors in the resolution of scheduling conflicts: (a) age of the cases and number of previous continuances; (b) whether sanctions for delay have been previously imposed; (c) the complexity of the cases; (d) the estimated trial time; (e) the number of attorneys and parties involved; (f) whether the majority of parties and witnesses are local or will be summoned from outside the venue; (g) whether the trial involves a jury; (h) the difficulty or ease of rescheduling; and, (i) the existence of any constitutional or statutory provision granting priority to a particular type of litigation.
5.04 Notice of Conflict
It shall be the duty of an attorney upon learning of an imminent scheduling conflict to give written notice to opposing counsel, the clerks of all courts, and the presiding judges, if known, in all cases, stating therein the circumstances above relevant to a resolution of the conflict under these rules. Ex parte communication is inappropriate, unless there is insufficient time to resolve the conflict by written notice.
5.05 Resolution of Conflict
The judges of the courts involved in a scheduling conflict
shall promptly confer, resolve the conflict, and notify counsel of the resolution. Nothing
in these rules is intended to discourage counsel from resolving conflicts or to prevent
courts from voluntarily yielding a favorable scheduling position. Judges are urged to
communicate with each other in an effort to lessen the impact of conflicts and
continuances on all courts.
6. MOTIONS PRACTICE, GENERAL
6.01 Form of Memoranda, Motions, and Other Papers
(a) Generally: Regarding Paper Size, Format, and Spacing. All memoranda, motions, and other papers shall be printed or typed and reproduced by any duplicating or copying process which produces a clear black image on white paper. The individual copies shall be securely bound with metal staples or fasteners at the top left corner and the page size shall be eight and one-half (8 1/2) inches by eleven (11) inches. The text shall be double-spaced and be no smaller than twelve (12)- point proportionally spaced or eleven (11)-point nonproportionally spaced type. Footnotes and indented quotations may be single-spaced, and footnote text shall be no smaller than eleven (11)-point proportionally spaced or ten (10)-point nonproportionally spaced type. Margins shall be no less than one inch.
(b) Captions. A motion, response to a motion, or memorandum shall contain captions setting forth (1) the name of the court; (2) the number of the case, if assigned; (3) on the line below the case-number line, the name of the assigned judge; (4) the style of the case; and (5) a brief descriptive title indicating the nature of the document. A motion, response to a motion, or memorandum shall also contain the name, bar identification number, address, and telephone number of the counsel or party, if unrepresented by counsel, filing the document. Counsel shall also name the party they are representing.
(c) Time for Filing. Except by permission or order of the
court, no pleading shall be filed less than forty-eight (48) hours prior to oral
presentation or argument of a proceeding.
6.02 Citation Form
Citations in motions and memoranda must be in a generally accepted citation form.
6.03 Copies of Memoranda
Parties must file with the clerk of court the original of each memorandum. In addition, one copy of each memorandum shall be filed with the presiding judicial officer and served upon on all parties.
6.04 Copies of Cases and Statutes
If a motion or memorandum contains a citation to a case not reported in United States Reports (U.S.), West Virginia Reports (W.Va.), or South Eastern Reporter (S.E., S.E.2d), a copy of that case must be attached. If a motion or memorandum contains a citation to a statute other than a West Virginia or federal statute, a copy of the statute must be attached. If a motion or memorandum contains a citation to any regulation, a copy of that regulation must be attached. The attachment requirement applies only with respect to the copy of the motion or memorandum transmitted to the judicial officer and to opposing counsel, not to any copy filed in the office of the clerk.
Reporter's Note: TCR 7.04 applies in magistrate court as well
as in circuit court.
7.01 Master List
A master list of prospective jurors shall be maintained as provided in W.Va. Code § 52-1-5, and shall be compiled either by selecting a random sample of names from each source list used or by merging the complete lists. Either method must allow for the removal of all duplicate names from the resulting master list. The master list shall be compiled at least once every two years at a time designated by the chief judge.
7.02 Jury Wheel or Jury Box
Jury wheels or jury boxes maintained under the provisions of W.Va. Code § 52-1-6 may include the entire master list or a randomly selected subset thereof.
7.03 Jury Panels and Pools
Any panel or pool of jurors drawn from the jury wheel or
box pursuant to W.Va. Code § 52-1-7 shall be available for jury selection and service in
both circuit and magistrate court. Separate panels or pools of jurors for circuit and
magistrate court shall not be maintained.
7.04 Magistrate Court Juries
When a jury trial is scheduled in magistrate court, the magistrate court clerk shall forthwith, but no later than five days before the scheduled trial date, inform the circuit clerk of the number of prospective jurors required. The circuit clerk shall randomly select the number of jurors required for magistrate court from the panel or pool of jurors available for service in the circuit court. The circuit clerk shall contact or otherwise arrange for the jurors so selected to appear at the specified date, time and place of the magistrate court trial. If, before the trial date, it becomes known that the jury panel will not be needed, the magistrate clerk shall forthwith so inform the circuit clerk, who shall notify the scheduled jurors.
Processing of payment for jurors for service in magistrate court shall be the responsibility of the circuit clerk solely, in the same manner as compensation for service in the circuit court as provided in W.Va. Code §§ 52-1-17, 52-1-19, and 52-1-20.
Upon completion of service in magistrate court, a juror or the
juror's name shall be returned to the circuit court pool of jurors.
8. CAMERAS, AUDIO EQUIPMENT, AND MEDIA IN THE COURTROOM
Reporter's Note: TCR 8.01 - 8.10 apply in magistrate court as
well as in circuit court.
8.01 Permission of the Court Required
Cameras and audio equipment may be permitted in and around the courtrooms at the discretion of each presiding circuit judge or magistrate (hereafter in this Rule 8, presiding officer).
8.02 Procedure to Obtain Permission
The presiding officer, based upon requests made by a party or any other person at least one day in advance of the proceedings, shall decide whether to allow camera and/or audio coverage of proceedings in and around the courtroom in a given case. A party, witness, or counsel may object to such coverage of any case or of any portion of the proceedings, and the presiding officer shall rule upon such an objection. The decision whether to cover judicial proceedings shall be left to the discretion of the individual media organization for which coverage has been approved.
It shall be the affirmative duty of the media personnel to affirm that they have read these rules and will abide by the same and further to demonstrate to the presiding officer sufficiently and in advance of any proceeding that the equipment sought to be used does not produce a distracting sound or light. A failure to obtain such advance approval may preclude the use of such equipment in any proceeding.
8.03 Termination of Coverage
After the proceedings have commenced, the presiding
officer shall terminate coverage of any portion of the proceedings or of the remainder of
the proceedings if the presiding officer determines that coverage will impede justice or
deny any party a fair trial.
8.04 Scope of Coverage
Camera coverage shall be limited to those proceedings open
to the public. In order to protect the attorney-client privilege and the right to
effective assistance of counsel, there shall not be audio coverage or broadcast of any
conferences occurring between or among attorneys and their clients; or between and among
attorneys, clients, and the presiding officer.
8.05 Nonjudicial Meetings
Coverage of any nonjudicial meeting or other gathering in the courtrooms shall be determined by the concurrence of the sponsoring group and the presiding officer and shall be conducted in accordance with these rules. These rules shall not limit media coverage of ceremonial proceedings conducted in court facilities under such terms and conditions as may be established by the prior consent of the presiding officer.
8.06 Equipment and Personnel
The following equipment and persons shall be the
maximum equipment and broadcast personnel permitted in the courtroom at any one time:
(a) One portable television camera or film camera with not more
than one person operating the same.
(b) One still photographer with one camera and not more than two lenses and necessary related equipment.
(c) As used in these rules, “television equipment” includes both film and videotape cameras. Only television equipment which does not produce distracting sound or light shall be employed in the courtroom. No artificial lighting (other than that normally present in the courtroom) shall be employed in the courtroom except that, with the concurrence of the presiding officer, modifications and additions may be made to lighting in the courtroom, provided that such modifications or additions are installed and maintained without public expense.
(d) Only film and video cameras without working audio pickup, unless otherwise approved by the presiding officer, shall be employed in the courtroom. Only still camera equipment that does not produce distracting sound or light shall be employed in the courtroom.
(e) Audio equipment of any type shall not be permitted in the courtroom at any time, without prior permission of the presiding officer. If permission is given, not more than one audio system for radio broadcast shall be permitted in any proceeding. If a technically suitable audio system exists in the court facility, audio pickup for both radio and television shall be accomplished from such system. If a technically suitable audio system does not exist in the court facility, microphones and related wiring shall be unobtrusive and shall be located in places designated in advance of the proceeding by the presiding officer.
8.07 Location of Equipment
The equipment as designated above shall be located in the courtroom as follows:
(a) Television equipment shall be positioned in such location in the courtroom as shall be designated by the presiding officer. All camera equipment shall be positioned only in such area. Television equipment shall be positioned in an area outside the courtroom if that is technically possible. Cables and wiring will be placed in a safe and unobtrusive manner.
(b) A still camera photographer shall position himself or herself in such location in the courtroom as shall be designated by the presiding officer. The photographer shall assume a fixed position within the designated area and shall act so as not to create a disturbance or call attention to himself or herself through further movement. The photographer shall not move about the courtroom.
(c) Audio equipment shall be positioned in such location in the courtroom as shall be designated by the presiding officer. Cables and wiring will be placed in a safe and unobtrusive manner.
(d) Representatives of the media shall not move about the courtroom while a proceeding is in progress, and equipment, once positioned, shall not be moved during a proceeding.
8.08 Pooling Arrangements
Any pooling arrangements among those seeking to provide camera coverage that are required by these limitations on equipment and personnel shall be the sole responsibility of media persons. The presiding officer will not resolve any dispute regarding the same. In the absence of an advance agreement on pooling by multiple media representatives, the presiding officer may exclude all contesting video media equipment from the courtroom.
8.09 Admissibility in Evidence
None of the film, videotape, photograph, or audiotape developed during any proceeding shall be admissible as evidence in the proceeding out of which it arose, any proceeding subsequent or collateral thereto, or upon any retrial or appeal of such proceeding, unless the presiding officer has designated it as part of the official record of the proceeding.
8.10 Prior Approval to Identify or Show Jurors
Without prior approval by the presiding officer, no person shall broadcast or publish any written report, film, videotape, photograph, audio tape, or other report of any kind or character, taken or made in or out of the courtroom where the face of a juror is shown or the identity of any juror is stated or is otherwise discernable. Nothing herein shall be interpreted to prohibit a juror from voluntarily disclosing his or her identity to the media, after the completion of such juror's term of service.
9. CUSTODY AND DISPOSITION OF EXHIBITS
9.01 Generally
After being marked for identification, exhibits of a documentary nature admitted in evidence or made a part of the record in any case pending or tried in court shall be placed in the custody of the clerk unless otherwise ordered. The court may order that exhibits, models, and materials admitted in evidence that cannot be stored conveniently in the clerk's facilities be retained in the custody of the attorney or party producing them at trial unless otherwise ordered, and the attorney or party shall execute a receipt therefor. All exhibits admitted in evidence in a criminal case that are in the nature of controlled substances, legal or counterfeit money, firearms, dangerous devices, or contraband of any kind shall be retained by the clerk pending disposition of the case and any appeal, and until the court authorizes destruction or other disposal of such exhibits.
A party or attorney who has custody of an exhibit shall keep it available for the use of the court or any appellate court, and shall grant the reasonable request of any party to examine or reproduce the exhibit for use in the proceeding.
Upon application and proper notice, the court may order that documentary exhibits retained by the clerk be returned to the party to whom they belong, provided that copies are filed in place of the originals.
After final judgment and after the time for motion for new trial and appeal has passed, or upon the filing of a stipulation waiving and abandoning the right to appeal and to move for a new trial, the clerk is authorized, without further order, to return all exhibits in civil cases to the appropriate parties or their counsel.
10. FILING AND REMOVAL OF PAPERS; LIMITATION OF ACCESS TO COURT FILES
Reporter's Note: TCR 10.04 applies in magistrate court as well as in circuit court.
10.01 Filing of Papers
Except as otherwise permitted or required by these rules or other rules of court, the original of all papers that must be filed with the court shall be filed at the clerk's office, on paper measuring eight and one-half (8 1/2) inches in width and eleven (11) inches in length, clearly printed or typed and reproduced by any duplicating or copying process which produces a clear black image on white paper. If more than one page in length, the papers must be bound on the top left corner and not bound at the top. The clerk shall bind the same in the folder or jacket at the left side and not at the top.
10.02 Removal of Papers and Files from Custody of Clerk
(a) Removal of Papers. No papers shall be removed from any file, except by order of court. Papers on file in the office of the clerk shall be produced pursuant to subpoena from a court of competent jurisdiction directing their production.
(b) Removal of Files. No files may be removed from the office of the clerk, except upon order of the court. The clerk may, however, permit temporary removal of a court file by authorized court personnel, provided that the clerk maintain a record of the individual removing the file, noting, at minimum, the date and time of its removal and return.
10.03 Limitation of Access to Court Files
(a) Nature of Order. Upon motion by either party named in any civil action, the court may limit access to court files. The order of limitation shall specify the nature of the limitation, the duration of the limitation, and the reason for the limitation. Upon motion filed with the complaint, accompanied by a supporting affidavit, limitation of access may be granted ex parte.
(b) Review of Order. An order limiting access may be reviewed by the court at any time on its own motion or upon the motion of any person.
10.04 Access to Court Files and Other Court Records under the Freedom of Information Act
(a) All persons are, unless otherwise expressly provided by law or excepted by Rule 10.03, entitled to full and complete information regarding the operation and affairs of the judicial system. Any elected or appointed official or other court employee charged with administering the judicial system shall promptly respond to any request filed pursuant to the West Virginia Freedom of Information Act.
(b) Writings and documents relating to the conduct of the
public's business, and which are prepared, owned or retained by a court, circuit clerk, or
other court employee, are to be considered “public records.” Requests for such
writings must be directed to, and responded to by, the particular court, circuit clerk, or
other court employee who retains custody of the particular public records sought.
Writings relating to the conduct of the public's business, but
which are prepared, owned and retained by individuals other than court officers or
employees, such as private or independent contractors, are not considered “public
records.”
(c) The custodian of any court file or other public record
shall furnish copies of the requested information or, in the alternative, furnish proper
and reasonable opportunities for the inspection and examination of the court file or
public record in his or her office during usual business hours. Reasonable facilities for
taking memoranda or abstracts from the court file or other public record shall be
provided. If the court file or public record requested exists in magnetic, electronic or
computer form, when requested, the custodian of the records shall make copies available in
the format in which it is stored on magnetic or electronic media.
(d) Costs. The court, circuit clerk, or other court employee may
charge a fee reasonably calculated to cover the actual cost of reproducing or otherwise
making available the public records.
11. CAPTION AND FORMAT OF ORDERS
11.01 Captions
Every order shall carry captions setting forth: (1) the name of the court; (2) the number of the case; (3) on the line below the case-number line, the name of the assigned judge; (4) the style of the case; and (5) a heading that generally and concisely describes the nature or purpose of the court's action.
11.02 Format
Every order shall designate the date of the proceeding and shall be double spaced. In addition, every order shall set out clearly and distinctly, in its last substantive paragraph, any and all directives to the clerk; and the clerk shall make a notation in the margin as to when those directives have been completed.
12. FILING AND SERVICE BY FACSIMILE TRANSMISSION
Reporter's Note: TCR 12.01 - 12.06 apply in magistrate
court as well as in circuit court.
12.01 Applicability
All courts within the state shall maintain a facsimile machine within the office of the clerk, shall accept the filing of pleadings and other documents, and may send documents by facsimile transmission to the extent expressly provided for in these rules and not in conflict with statutes or other court rules.
12.02 Definitions
(a) Courts. The term "courts" is defined as the supreme court of appeals, circuit courts, and magistrate courts.
(b) Facsimile Transmission. The term "facsimile transmission" is defined as the transmission of a document by a system that encodes the document into electronic signals, transmits these electronic signals over a telephone line, and reconstructs the signals to print a duplicate of the original document at the receiving end.
(c) Facsimile Transaction. The term "facsimile transaction" is defined as the facsimile transmission of a document to or from a court.
(d) Service by Facsimile Transmission. The term "service by facsimile transmission" is defined as transmission of a motion, notice, or other document to an attorney, attorney-in-fact, or a party under these rules.
(e) Facsimile Machine. The term "facsimile machine" is defined as a machine that can send and receive on plain paper a facsimile transmission using the international standard for scanning, coding, and transmitting established for Group 3 machines by the Consultative Committee of International Telegraphy and Telephone of the International Telecommunications Union (CCITT), in regular resolution.
(f) Fax. The term "fax" is defined as a facsimile transmission as defined in TCR 12.02(b).
12.03 General Provisions
(a) Availability of Facsimile Services. Each circuit clerk shall have a facsimile machine available for court-related business during regular business hours and such additional hours as may be established by the chief judge. Each magistrate clerk shall have a facsimile machine available for court-related business twenty-four (24) hours per day, seven (7) days per week.
(b) Form and Format. All documents conveyed via facsimile transmission must conform in form and format to existing standards established by applicable statutes or rules of court. They should be received on, or the receiver shall make any necessary photocopies on, eight and one-half (8 1/2) by eleven (11) inch, twenty (20)-pound alkaline plain paper of archival quality, and satisfy all other requirements of these rules.
(c) Page Limitation. No facsimile transmission over twenty (20) pages in length (including the cover sheet) shall be accepted unless prior consent is given by the court or by the clerk of the court.
(d) Oversized Documents. Facsimile transmission of, or involving, any original document larger than eight and one-half (8 1/2) by eleven (11) inch is prohibited unless prior consent is given by the court or by the clerk of the court.
(e) Facsimile Cover Sheet. The sender must provide his or her or the entity's name, address, telephone number, facsimile number, the document(s) being transmitted by caption and matter, and the number of pages (including the cover sheet), and must provide clear and concise instructions as needed concerning processing.
(f) Signatures.
(1) Presumption of Authenticity. Any signature appearing on
a facsimile copy of a court pleading or other document shall be presumed to be authentic.
(2) Inspection of Originally Signed Document or Certified Copy.
Upon demand by the receiver, the sender of a fax shall make available to the receiver for
inspection the original physically signed document or, if the court is the sender, a
certified copy of the original physically signed document.
(g) Verification of Receipt. Court personnel shall verify, either
orally or in writing, the receipt of documents filed by facsimile transmission upon proper
inquiry by the sender.
(h) Filing Effective upon Receipt of Transmission. A facsimile copy of a pleading or other document shall be deemed filed when it is received in its entirety on a clerk's facsimile machine without regard to the hours of operation of the clerk's office. Upon receiving a faxed filing, the clerk of the court shall note on the facsimile copy the filing date, in the same manner as with pleadings or other documents filed by mail or in person.
(i) Payment of Fees.
(1) Any required filing or other fee shall be paid by mail or in
person following a facsimile filing as follows: the required fee, accompanied by a copy of
the facsimile filing cover sheet, shall be deposited with the court not later than seven
(7) calendar days after the filing by fax.
(2) The clerk of the court may decline to process the pleading or
other document until receipt of any required filing fee, and the court shall withhold the
entry of judgment pending receipt of fees.
(3) If any required fee is not received by the court within seven (7) calendar days after the filing by fax, the filing shall be voidable and no further notice need be given any party.
(j) Filing of Original. The filing of the original shall not be required, unless otherwise ordered by the court or directed by the clerk of the court.
(k) Retention of Original. If filing of the original is not required, the sender must retain the original physically signed document in his or her possession or control.
(l) Photocopying Charges. The sender shall be responsible for any photocopying charges associated with the processing of any document filed by facsimile transmission.
(m) Transmission Error. If there is an error in any facsimile transmission, the clerk shall not accept or note the document as filed until a corrected, acceptable document is received.
(n) Notice of Transmission Error; Risk of Use of Facsimile Transmission. If the receiver discovers or suspects a transmission error, the receiver shall notify the sender as soon as possible. The sender bears any risk of using facsimile transmission to convey any document to a court. The potential receiver bears any risk of receiving any document by facsimile transmission from a court.
(o) Nunc Pro Tunc Filing. If the attempted facsimile transmission is not accepted as filed with the court because of a transmission error or other deficiency, the sending party may move acceptance nunc pro tunc by filing a written motion with the court. The motion shall be accompanied by the activity report or other documentation in order to verify the attempted transmission. The court, in the interest of justice, and upon the submission of appropriate documentation, may entertain the motion and hold a hearing in its discretion.
(p) Facsimile Receipt and Transmission; Fees. The clerk may
send or receive facsimile transmissions involving court-related business. With the
exception of transmissions by or for parties authorized to receive the services of the
court without cost, the clerk shall charge $2.00 per page transmitted at the request of
any person other than a judicial officer or employee.
12.04 Filing and Service of Documents in Civil Actions by Facsimile Transmission
(a) Method of Filing. Except for mental hygiene applications or where otherwise prohibited by law or court rule, a party may file any document in a civil action, other than a complaint or petition, by facsimile transmission to any clerk's office having a facsimile machine. The clerk shall accept the document as filed if the filing and the document comply with these and other applicable rules and statutes.
(b) Service. Service of any document in a civil action, other than original process, may be made by facsimile transmission subject to the provisions of these rules, other applicable rules and statutes, and W.Va. R.Civ.P. 5 or Rule 8 of the Rules of Civil Procedure for Magistrate Courts.
(c) When Service Complete. Service by fax is complete upon receipt of the entire document by the receiver's facsimile machine.
(d) Proof of Service. Where service is made by facsimile transmission, proof of service shall be made by affidavit of the person making service or by certificate of an attorney. Attached to such affidavit or certificate shall be a copy of the sender's facsimile machine transmission record.
12.05 Facsimile Transmission of Domestic Violence Petitions and Protective Orders
(a) Petitions.
(1) Verified petitions for protective orders may be filed by fax. If transmission is made to the magistrate court after regular business hours, the on-call magistrate shall be notified before the transmission occurs.
(2) In addition to the information required by TCR 12.03(e), the fax cover sheet accompanying a domestic violence petition for a protective order shall include the telephone number where the petitioner may be reached.
(3) Any action taken by the judge or magistrate on a faxed petition shall be communicated as soon as feasible to the petitioner by return fax or other method.
(b) Protective Orders.
(1) Temporary Orders. A temporary protective order may issue based solely on the representations contained in a verified petition properly filed by fax.
(2) Distribution to Law-Enforcement Agencies. Any temporary or final protective order issued pursuant to the provisions of W.Va. Code §§ 48-2A-1 et seq. may be faxed to appropriate law-enforcement agencies to satisfy the statutory requirements for transmission of such documents by the court. The petition upon which a temporary order is issued shall be faxed to law-enforcement agencies with the temporary protective order.
(3) Service of Process. Any temporary or final protective order faxed to law-enforcement agencies shall be valid for their use in making personal service on the respondent named in the order.
12.06 Facsimile Transactions in Criminal Matters
(a) Method of Filing. Except for complaints and search warrant applications, any document in a criminal action may be filed by facsimile transmission to any clerk's office having a facsimile machine. The court shall accept the document as filed if the filing and the document comply with these and other applicable rules and statutes.
(b) Service. Service of any document in a criminal action may be made by facsimile transmission subject to the provisions of these rules, other applicable rules and statutes, and W.Va. R.Crim.P. 49 for circuit courts or Rule 13 of the Rules of Criminal Procedure for Magistrate Courts.
(c) When Service Complete. Service by fax is complete upon receipt of the entire document by the receiver's facsimile machine.
(d) Release from Custody. If bail fixed by a court is posted after a defendant is placed in the custody of a jail or correctional facility, the court may effectuate the release of the defendant by facsimile transmissions in the following manner.
(1) Both the criminal bail order admitting the defendant to bail and the release order are faxed to the jail or correctional facility by the court.
(2) The jailer or correctional officer at the facility shall provide the defendant with the faxed bail order; the jailer or correctional officer shall then forthwith transmit a return of the completed release order by return fax to the issuing court.
(3) The issuing court confirms receipt of the completed release order from the jailer or correctional officer at the facility. The jailer or correctional officer at the facility shall not release the defendant until receipt of such confirmation.
(e) Commitment to Custody. The committing judge or magistrate may by fax authorize and notify the jail or correctional facility of a criminal defendant's commitment to that jail or correctional facility in the following manner.
(1) The court faxes the commitment order to the jail or correctional facility.
(2) The jailer or correctional officer transmits forthwith by return fax verification of receipt of the order.
(3) Once the defendant is in the custody of the jail or correctional facility, the jailer or correctional officer shall forthwith by fax return the completed commitment order to the committing court.
(4) If the commitment is made by a court not having venue of the offense, the terms and conditions of bail and the commitment order shall be transmitted as expeditiously as feasible, by fax if possible, to the magistrate court or circuit court wherein the preliminary hearing or trial is to be held.
13.01 Generally
Library materials will not circulate, except for brief periods
necessary to allow photocopying at another courthouse location. Access will be open only
during regular business hours. After-hours access may be on the basis of a key checkout,
as established by the supervising circuit judge, with a prohibition on key duplication
and/or distribution as to non-court persons.
Rule 14.05. Mental Hygiene Proceedings
The presiding officer may utilize videoconferencing to conduct any evidentiary or
non-evidentiary hearing, and may permit any witness to testify or be deposed in this
manner.
(Note: By Order entered October 9, 2008, TCR was approved, effective immediately.)
Trial Court Rule 15 governs electronic filing and service of documents and maintenance of case-related information in the circuit courts of West Virginia in certain Mass Litigation referred to the Mass Litigation Panel (“Panel”) under Trial Court Rule 26, and as further provided by Trial Court Rule 15.02(c). This rule does not preclude future application of electronic filing and service in other types of actions.
(a) The electronic filing and service of documents and the electronic receipt of associated case information in the circuit courts of West Virginia may be referred to as e-filing and service.
(b) E-filing and service shall not be used to initiate a civil action or to serve a new party with an amended complaint or a third-party complaint.
(c) If the Panel determines it is appropriate for Mass Litigation or proceedings therein to be subject to e-filing and service, the Panel Chair shall enter an order designating such Mass Litigation or proceedings therein for e-filing and service.
(d) Where requirements of the Rules of Civil Procedure are satisfied by e-filing and service procedures, Trial Court Rule 15 shall specifically so state. All filings, whether electronic or paper, shall otherwise comply with the Rules of Civil Procedure and the Trial Court Rules.
(e) The process for e-filing and service shall utilize an e-filing and service provider designated by the Supreme Court of Appeals.
Rule 15.03. Authorization and Signature.
(a) Each e-filed document shall be deemed to have been signed by the attorney, or by the party not represented by an attorney who authorized the filing, and shall bear a facsimile or typographical signature of such person, e.g. "/s/ Adam Attorney." Each document e-filed by or on behalf of a party shall also include the address and telephone number of the attorney or unrepresented party filing such document. Attorneys shall also include their West Virginia State Bar Identification Number or a notation that the attorney has been admitted pro hac vice.
(b) No lawyer shall authorize anyone to e-file or serve on that lawyer's behalf, other than an employee of his or her law firm or a service provider retained to assist in e-filing and service. No person shall utilize, or allow another person to utilize, the password of another in connection with e-filing or service.
(c) The e-filing of a document by a lawyer, or by another under the authorization of a lawyer, shall constitute a signature of that lawyer under Rule 11(a) of the Rules of Civil Procedure.
(a) Except where otherwise provided, every e-filed document shall be e-served. Unless otherwise ordered, the e-service of a document, in accordance with these rules, shall be considered service under Rule 5 of the Rules of Civil Procedure. Electronic service shall be treated the same as service by mail for purposes of Rule 6(e) of the Rules of Civil Procedure.
(b) Parties who are granted a waiver under Trial Court Rule 15.06 shall be served in accordance with Rule 5 of the Rules of Civil Procedure, or by utilizing the U.S. Mail feature of the e-filing and service system.
(c) The Presiding Judge may direct the parties to provide a courtesy copy of filings to the Presiding Judge in accordance with Trial Court Rule 6.03, either by U.S. Mail or by utilizing the Courtesy Copy via U.S. Mail feature of the e-filing and service system.
(d) For documents that have been e-filed, the electronic version of the document constitutes the official court record, and e-filed documents have the same force and effect as documents filed by traditional means. Documents filed and served in accordance with these rules are deemed to be in compliance with Trial Court Rule 10.01.
(a) Orders issued by the Presiding Judge shall bear a typographic signature and an official e-filing court stamp, and shall be e-filed and served. The date of the official e-filing court stamp shall constitute the date of entry of the order.
(b) Parties who are granted a waiver under Trial Court Rule 15.06 shall be served in accordance with Rule 5 of the Rules of Civil Procedure, or by utilizing the U.S. Mail feature of the e-filing and service system.
(c) E-filed orders maintained as part of the online register of actions shall satisfy the requirements of Rule 77(d) of the Rules of Civil Procedure.
(d) An electronic register of actions, with associated documents and filing receipts, shall be maintained as part of the e-filing and service system and shall constitute the civil docket and satisfy the requirements of Rule 79 of the Rules of Civil Procedure.
All parties who are unable to utilize e-filing and service may file a written motion with the Presiding Judge seeking a waiver of e-filing and service requirements, which motion may be granted for good cause shown. All parties who have obtained such waiver shall file documents in accordance with Trial Court Rule 10.01, and serve documents in accordance with Rule 5 of the Rules of Civil Procedure. Such documents shall be uploaded and made available within the e-filing and service system by the circuit clerk in the circuit where the Mass Litigation subject to e-filing is pending.
The circuit clerk in the circuit where the Mass Litigation subject to e-filing is pending shall make a Public Access Computer Terminal available to the general public to allow access to the Court’s electronic docket, pleadings and other documents that are not sealed or otherwise confidential. Copies made from the Court’s electronic records shall be printed by the Clerk’s Office, and standard copying fees shall be charged.
Additional procedures specific to Mass Litigation or proceedings therein subject to e-filing and service may, in the discretion of the Presiding Judge, be set forth in a case management order.
The e-filing and service system requires parties to be registered participants to file and serve, receive service, access the register of actions, and use the system. Each participant shall register with the e-filing and service provider, provide the information necessary to load a case and its parties into the e-filing and service system and pay the fees billed by the e-filing and service provider at rates approved by the Supreme Court of Appeals.
(a) Each e-filed document shall be submitted in a file format that is acceptable to the e-filing and service provider. To the extent practicable, each e-filed document shall be formatted in accordance with Trial Court Rule 6.01 governing formatting of paper documents. A document may exceed page limitation rules to a maximum of two additional pages when the additional pages are attributed to the electronic conversion or filing process. The e-filing and service system shall automatically convert all document formats accepted by the e-filing and service provider to a PDF format.
(b) All e-filed documents relating to a single pleading or document submitted in the same electronic transaction shall be "electronically stapled" using the "main" and "supporting" functionality of the e-filing and service system so multiple related documents, such as a motion and proposed order, are linked logically together and identified as a single transaction.
(c) All e-filed documents or pleadings directly relating to a previously e-filed document, or pleading shall be linked to the previously e-filed document or pleading, using the "linked document feature" in the e-filing and service system.
(d) Proposed orders filed for the consideration of the Presiding Judge shall be filed in a Rich Text Format document or “.rtf.”
(e) A document that is required to be executed by the parties or counsel, verified, acknowledged or made under oath shall be e-filed only as a scanned image. Any such document that is to be attached to an e-filed document shall be scanned and e-filed and served along with the underlying document.
(a) A document shall be considered filed with the Clerk once electronic transmission is successfully completed, as recorded in the e-filing and service system.
(b) An e-filed document is deemed served for purposes of Rule 5 of the Rules of Civil Procedure only upon selection of participants to be served and completed submission of the electronic filing. If an individual or entity required to receive service is a participant in the e-filing and service system, then the person e-filing a document shall provide e-service. The associated filing receipt shall list the participants selected and give proof of date, time and method of service. If a party is unable to receive service of an e-filed document electronically, the document shall be served in accordance with Rule 5 of the Rules of Civil Procedure, or by utilizing the U.S. Mail feature of the e-filing and service system, and a copy of the certificate of service evidencing non-electronic service shall be filed in the e-filing and service system.
(c) It is the responsibility of the participant to check his or her online inbox to view e-filed and served documents. Courtesy e-mail notification of a filing shall not constitute service.
A motion to seal documents shall be e-filed and served. However, any documents that are the subject of a motion to seal shall be filed with the court enclosed in sealed envelopes to be opened as directed by the court pursuant to Rule 26(c)(8) of the Rules of Civil Procedure, and a copy of the documents that are the subject of the motion to seal shall be provided to the Presiding Judge for review.
If a document cannot be e-filed with the circuit clerk or e-served due to: (a) an error in transmission of the document to the e-filing and service provider that was unknown to the sending participant; or (b) a failure to process the e-filing when received by the e-filing and service provider; or (c) rejection by the Clerk; or (d) other technical problems experienced by the filer; the Court may, upon satisfactory proof, enter an order permitting the document to be filed or served nunc pro tunc to the date it was first attempted to be e-filed and served.
E-filing and service system participants shall notify the e-filing and service provider within 10 days of any change in firm name, delivery address, fax number or e-mail address. Participants who have set an e-mail notification preference are solely responsible for providing an accurate, up-to-date e-mail address and for ensuring that the e-mail account is properly configured to receive e-mail notifications for the e-filing and service system.
16.01 Purpose
Article III, Section 17 of the West Virginia Constitution provides, "justice shall be administered without sale, denial or delay." Article III, Section 13 of the West Virginia Constitution provides, "Trials of crimes ... shall be ... without unreasonable delay." Article VIII, Section 8 of the West Virginia Constitution further provides, "Under its inherent rule-making power, which is hereby declared, the Supreme Court of Appeals shall, from time to time, prescribe, adopt, promulgate and amend rules prescribing . . . standards of conduct and performance for justices, judges, and magistrates, along with sanctions and penalties for any violation therof [.]"Rule 1 of the Rules of Civil Procedure provides that they "shall be construed to secure the just, speedy, and inexpensive determination of every action." Rule 2 of the Rules of Criminal Procedure provides that they "shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay." Canon 3B(8) of the Code of Judicial Conduct provides, "A judge shall dispose of all judicial matters promptly, efficiently, and fairly." Finally, Section 2.50 of the American Bar Association Standards Relating to Court Delay Reduction provides, "the court, not the lawyers or litigants, should control the pace of litigation." Pursuant to these principles, the Supreme Court of Appeals has determined that the expeditious processing and timely disposition of cases by circuit courts are essential to the proper administration of justice. Accordingly, it directs circuit courts and their officers to comply with these rules, which provide time standards for the processing of all cases except for those governed by statute or in which the circuit court finds, on the record, that extraordinary circumstances exist for exemption from these standards.
16.02 Implementation
(a) Criminal. The percentage of criminal cases that must be
at or under the applicable time standards as provided in these rules is eighty (80)
percent.
(b) Civil. The percentage of civil cases that must be at or under
the applicable time standards as provided in these rules is seventy-five (75) percent.
(c) Reporting. The Administrative Director of Courts shall issue, on a semi-annual basis, a report indicating the degree of compliance with these rules by the circuit courts. For those circuit courts not in compliance, the chief judge shall file with the Administrative Director of Courts within sixty (60) days of receipt of the report by the Administrative Director a report indicating the reasons for such noncompliance. Following receipt of the report, the Administrative Director shall take such remedial measures, with the approval of the Chief Justice of the Supreme Court of Appeals, including the recall of senior status judges, the reassignment of judges from other circuit courts, or the implementation of case management procedures, as are necessary to bring the circuit court into compliance with these rules.
16.03 Definitions
(a) Purpose. The definitions set forth in this rule are for
the purpose of measuring compliance with the time standards set forth in these rules.
(b) Filing. "Filing" is defined as the date of formal registration of a case and assignment of a case number by the clerk of court.
(c) Submission. "Submission" is defined as the later of the date of argument or the filing of the final reply brief, unless otherwise ordered by the court.
(d) Ruling. "Ruling" is defined as the date of the oral or written pronouncement of a decision by the court.
(e) Final Judgment. "Final judgment" is defined as the date of the entry by the circuit clerk of a final order, decree or other document that terminates or otherwise disposes of the case.
(f) Other Civil Cases. "Other civil cases" shall mean civil cases which do not involve a money judgment, generally require only one hearing and are generally commenced by the filing of a petition.
16.04 Time Standards for Criminal Cases
(a) Applicability. These rules are not intended to supersede any constitutional or statutory speedy trial provisions.
(b) Pretrial Motions. An order shall be entered which sets forth a ruling on pretrial motions which require a hearing or ruling within two months of submission or on the date of the trial, whichever is earlier.
(c) Felony Prosecutions. A sentencing order shall be entered in felony prosecutions within eight (8) months of the date of the indictment or information.
(d) Misdemeanor Prosecutions. A sentencing order shall be entered in misdemeanor prosecutions within eight (8) months from the date of indictment or information, the date of arrest, or the date of service of summons.
(e) Post-trial Motions. An order shall be entered on post-trial motions within one month of submission.
16.05 Time Standards for Civil Cases
(Note: By Order entered October 9, 2008, TCR 16.05(a) was amended, effective immediately.)
(a) Applicability. This rule governs general civil cases and does not apply to domestic relations, juvenile delinquency, abuse and neglect, mental hygiene, guardianship or conservatorship, cases referred to the Mass Llitigation panel pursuant to Rule 26, extraordinary writs, appeal, declaratory judgment, and equity proceedings.
(b) Pretrial Motions. An order shall be entered which sets forth a ruling on pretrial motions which require a hearing or ruling within two months of submission or on the date of trial, whichever is earlier.
(c) General Civil Cases. Final judgment shall be entered in general civil cases within eighteen (18) months of the filing of the complaint.
(d) Other Civil Cases. Final judgment shall be entered in other civil cases within six (6) months of the filing of the case.
(e) Post-trial Motions. An order shall be entered on post-trial motions within two months of submission.
(f) Civil Case Management. In order to conform with the time standards relating to civil cases, circuit courts shall comply with the provisions of W.Va. R.Civ.P. 16(b), and may, in their discretion, dismiss cases for lack of service as provided in W.Va. R.Civ.P. 4(k) and for inactivity as provided in W.Va. R.Civ.P. 41(b).
16.06 Domestic Relations Proceedings
(a) Applicability. The time standards set forth in this rule are not intended to supersede, but to supplement, statutory provisions applicable to domestic relations proceedings.
(b) Pretrial Motions. An order shall be entered on pretrial motions which require a hearing or ruling within one month of submission.
(c) Divorce, Annulment, and Separate Maintenance Proceedings. A final decree shall be entered in divorce, annulment, and separate maintenance proceedings within six (6) months of the filing of the complaint.
(d) Miscellaneous Domestic Relations Proceedings. A final decree shall be entered in miscellaneous domestic relations proceedings, including adoptions, paternity, and URESA actions, within nine (9) months of the filing of the petition.
(e) Post-hearing Motions. An order shall be entered on post-hearing motions within one month of submission.
16.07 Juvenile Delinquency Proceedings
(a) Applicability. The time standards set forth in this rule are not intended to supersede, but to supplement, statutory provisions applicable to juvenile delinquency proceedings.
(b) Pre-adjudicatory Motions. An order shall be entered on pre-adjudicatory motions within one week of hearing on the motion.
(c) Preliminary Hearing. Unless the child is in detention or the hearing is continued for good cause to a date certain, the preliminary hearing shall be held within two (2) weeks of the filing of the petition.
(d) Arraignment. If an arraignment is held, it shall be conducted within two (2) weeks of the preliminary hearing.
(e) Adjudicatory Hearing. Unless an improvement period is
granted or the hearing is continued for good cause to a date certain, the adjudicatory
hearing shall be conducted within two (2) months of the preliminary hearing if a jury
trial is demanded or within one month if a jury trial is waived. If an improvement period
is granted, but revoked prior to its expiration, the adjudicatory hearing shall be
conducted within one month of revocation.
(f) Disposition. The dispositional order shall be entered within
two (2) months of the adjudicatory hearing. If a child is in detention, the dispositional
hearing shall be conducted within one month from the date the child is placed in
detention.
(g) Placement. If a child is in detention, an appropriate
placement order shall be entered within two (2) weeks of the dispositional hearing.
(h) Modification. An order shall be entered on a motion to modify within one month of the filing of the motion.
(i) Reporting Standard. The reporting standard from the filing of the petition to disposition in delinquency cases shall be eight (8) months. The reporting standard from the filing of the petition to disposition in status offender cases shall be six (6) months.
16.08 Abuse and Neglect Proceedings
(a) Applicable Standards. The specific time standards applicable to abuse and neglect proceedings are those contained in W.Va. Code §§ 49-6-1 et seq. and in the Rules of Procedure for Child Abuse and Neglect Proceedings.
(b) Reporting Standard. The reporting standard from the filing of the petition to the entry of an order of disposition, pursuant to W.Va. Code § 49-6-5(a), shall be twelve (12) months.
16.09 Mental Hygiene Proceedings
(a) Applicability. The time standards set forth in this rule are not intended to supersede, but to supplement, statutory provisions applicable to mental hygiene proceedings.
(b) Findings and Recommendations. Findings of fact and a recommended order shall be entered within two (2) weeks from the filing of an application for final commitment.
(c) Final Order. The final order shall be entered within one week of the recommended order.
(d) Reporting Standard. The reporting standard from the filing of the petition to disposition shall be three (3) months.
16.10 Guardianship and Conservatorship Proceedings
(a) Applicability. The time standards set forth in this rule are not intended to supersede, but to supplement, statutory provisions applicable to guardianship and conservatorship proceedings.
(b) Findings and Recommendations. Findings of fact and recommendations by a mental hygiene commissioner shall be submitted to the assigned circuit judge within seven (7) days of the hearing on any petition filed pursuant to W.Va. Code §§ 44A-2-1 et seq.
(c) Findings, Conclusions, and Final Order. The assigned circuit judge shall issue findings of fact, conclusions of law, and a final order pursuant to W.Va. Code § 44A-2-13, within seven (7) days of receiving the submission by the mental hygiene commissioner or, if the judge conducts a hearing, within seven (7) days of the hearing.
(d) Post-appointment Hearings and Rulings. Hearings on post-appointment petitions or motions shall be held within sixty (60) days of the filing of such petitions or motions. Findings of fact and recommendations by a mental hygiene commissioner shall be submitted to the assigned circuit judge within seven (7) days of the hearing. The assigned circuit judge shall issue findings of fact, conclusions of law, and the order ruling on the petition or motion within seven (7) days of receiving the submission of the mental hygiene commissioner or, if the judge conducts a hearing, within seven (7) days of the hearing.
(e) Reporting Standard. The reporting standard from the filing of a petition pursuant to W.Va. Code §§ 44A-2-1 et seq. to the disposition pursuant to W.Va. Code § 44A-2-13 shall be three (3) months.
16.11 Petitions and Appeals
(a) Petitions for Modification of Magistrate Sentence. An order shall be entered on a motion to modify a magistrate sentence pursuant to W.Va. Code §§ 62-11A-1, 62-11B-1 et seq., or 62-12-4, within two (2) months of the filing of the motion.
(b) Magistrate Court Appeals. A final judgment in civil cases or a sentencing order in criminal cases shall be entered within six (6) months of receipt of the magistrate court file by the clerk of the circuit court, except that, pursuant to W.Va. Code §§ 50-5-12(c)(6) and 50-5-13(c)(6), a final judgment in cases tried before a jury shall be entered within ninety (90) days after the appeal is regularly placed on the docket of the circuit court.
(c) Administrative Appeals. Unless otherwise provided by statute, a final judgment in an appeal from an administrative agency shall be entered within six (6) months of the filing of the appeal.
16.12 Extraordinary, Declaratory Judgment, and Equitable Proceedings
A final judgment or decree shall be entered in extraordinary, declaratory judgment, and equitable proceedings within one month of submission.
16.13 Duties of Court Officers
(a) Circuit Clerks. Every circuit clerk shall keep such records and make monthly reports on the status of cases in their respective courts as required by the Administrative Director of the Supreme Court of Appeals. Every circuit clerk shall also periodically inform the circuit court on the status of cases which may be dismissed pursuant to W.Va. R.Civ.P. 4(k) and 41(b).
(b) Judicial Officers. It shall be the duty of circuit judges and family law masters to effectuate expeditious movement and timely disposition of all cases assigned to them. It shall further be the duty of such judicial officers to control their dockets and to control continuances by means of strict application of the Rules of Civil Procedure, Rules of Criminal Procedure, and statutory time frame provisions governing continuances.
17. DISQUALIFICATION AND TEMPORARY ASSIGNMENT OF JUDGES
17.01. Motions for Disqualification.
Upon a proper disqualification motion, as set forth in this rule, a judge shall be
disqualified from a proceeding only where the judge's impartiality might reasonably be
questioned in accordance with the principles established in Canon 3(E)(1) of the Code of
Judicial Conduct.
(a) In any proceeding, any party may file a written motion for disqualification of
a judge within thirty (30) days after discovering the ground for disqualification. The
motion shall be addressed to the judge whose disqualification is sought and be filed with
the circuit clerk at least seven (7) days in advance of any date set for a non-trial proceeding
in the case or at least twenty-one (21) days in advance of any trial date set in the case and
shall:
(1) State the facts and reasons for disqualification, including the specific
provision of Canon 3(E)(1) of the Code of Judicial Conduct asserted to be applicable;
(2) Be accompanied by a verified certificate of counsel of record or
unrepresented party that they have read the motion; that after reasonable inquiry, to the
best of their knowledge, information, and belief, it is well grounded in fact and is
warranted by either existing law or a good faith argument for the extension, modification,
or reversal of existing law; that there is evidence sufficient to support disqualification; and
that it is not interposed for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation; and
(3) Be submitted by copy directly to the judge, and served upon counsel of
record or unrepresented party.
(b) Upon the judge's receipt of a copy of such motion, regardless of whether the
judge finds good cause and agrees to the disqualification motion or not, the judge shall:
(1) proceed no further in the matter;
(2) transmit forthwith to the Chief Justice a copy of the motion and
certificate, together with a letter stating the judge's response to the motion and the reasons
therefor, including such matters and considerations as the judge may deem relevant; and
(3) make a copy of the letter part of the record and file same in the office of
the circuit clerk with copies to counsel of record and any unrepresented party.
(c) Upon receipt of a disqualification or recusal motion pursuant to subdivision (b)
of this rule, the Chief Justice shall enter an order within fourteen (14) days providing for
the judge to either remain on the case or be removed, in which case the Chief Justice shall
appoint another judge to hear the matter.
(d) If the information is insufficient to permit the Chief Justice to make a ruling, the
Chief Justice may direct that the judge conduct a hearing on matters relating to the
disqualification motion and then proceed pursuant to this rule.
(e) In the event a disqualification motion is filed with the circuit clerk and written
notice thereof is submitted to the judge less than seven (7) days in advance of the date set
for a non-trial proceeding, or less than twenty-one (21) days in advance of the date set by
order for trial, the judge may either grant or deny the disqualification motion as follows:
(1) If the judge grants the motion for disqualification, the judge shall proceed
no further in the matter and shall forthwith transmit the motion and reason for the ruling
to the Chief Justice in accordance with subdivision (b)(2) of this rule, and the Chief Justice
shall consider the matter in accordance with this rule.
(2) If the judge denies the motion for disqualification the judge shall allow
the moving party to make a record on the disqualification issue and:
(a) in a non-trial proceeding when the date set by order for trial is
not within 21 days of the filing of the motion for
disqualification, the judge may conduct the non-trial
proceeding, and shall transmit the disqualification motion, the
record, and reason for the ruling on the disqualification issue
to the Chief Justice in accordance with subdivision (b)(2) of
this rule and the Chief Justice shall consider the matter in
accordance with this rule; or
(b) if a trial date is set by order within 21 days of the filing of the
disqualification motion, the judge is not required to transmit
the motion or record on the disqualification issue to the Chief
Justice, but the issue may be addressed on appeal.
17.02. Voluntary Recusal by a Judge.
In the absence of a disqualification motion having been filed, except as provided by
Rule 17.03 below, a judge seeking voluntary recusal shall so inform the parties and shall
proceed pursuant to the applicable provisions of TCR 17.01(b), provided, that in lieu of
a motion and certificate, the judge shall transmit to the Chief Justice a letter stating the
reasons why the judge is requesting recusal, with reference to the relevant section(s) of the
Code of Judicial Conduct and the Chief Justice shall rule pursuant to TCR 17.01(c) or
TCR 17.01(d).
17.03. Applicability.
The preceding provisions of this rule do not apply to the assignment or reassignment
of cases within a multi-judge circuit previous to the filing of a motion for disqualification.
17.04. Time.
Computation of any time period prescribed or allowed by this rule shall be governed
by W.Va. R.Civ.P. 6.
17.05. Challenge to Disqualification Rulings.
All rulings and orders relating to the recusal or disqualification of a judge shall be
considered interlocutory in nature and not subject to direct or immediate appeal. This rule
shall not, however, prohibit any party from seeking or using redress available by writ of
prohibition or any other appropriate extraordinary writ.
17.06. Unavailability under W.Va. Code § 51-2-1(a).
(a) The unavailability of the sitting judge in a single-judge circuit shall be a ground for invoking the concurrent jurisdiction of the Kanawha County Circuit Court only upon notification to and verification through the Supreme Court Administrative Office and affirmative referral by the Chief Justice.
(b) Upon verification of the unavailability of the sitting judge in a single-judge
circuit, the Chief Justice shall forthwith, by order:
(1) Refer the requesting party and the needed proceeding to the Kanawha
County Circuit Court; or
(2) Refer the requesting party and the needed proceeding to the different
judge already assigned, if any, to the single-judge circuit involved; or
(3) Assign a different judge to the single-judge circuit involved to conduct
the needed proceeding; or
(4) Direct that the requesting party await the return of the sitting judge in the
single-judge circuit involved.
(c) The judges of the Kanawha County Circuit Court are prohibited from entertaining or acting on any matters pursuant to W. Va. Code § 51-2-1(a) without verification of referral by the Chief Justice.
(d) No motion for the disqualification of the sitting judge in a single-judge circuit shall be referred to the Kanawha County Circuit Court.
(e) Cases in which matters are referred to the Kanawha County Circuit Court pursuant to TCR 17.06(b)(1) remain cases of the original county of venue within the single-judge circuit involved, and the original county of venue is the proper initial forum for any subsequent proceedings in such cases.
(f) The clerk of the Kanawha County Circuit Court shall forthwith transmit to the circuit clerk of the original county of venue a certified or attested copy of every document filed or entered in matters referred to the Kanawha County Circuit Court pursuant to TCR 17.06(b)(1).
17.07. Sanctions.
If a motion is signed in violation of TCR 17.01, the Chief Justice or the judge
whose disqualification was sought, upon motion or sua sponte, may refer the matter to the
appropriate disciplinary authority or may impose upon the person who signed it, an
unrepresented party, or both, an appropriate sanction, which may include an order to pay
to the other party or parties the amount of reasonable expenses incurred because of the
filing of the motion, including reasonable attorney fees.
18. RESERVED
19. RESERVED
CHAPTER 2: CIVIL MATTERS
20. EXTENSION OF ANSWER DATE
20.01 Generally
Unless otherwise ordered, the time to answer or otherwise respond to a complaint may be extended by stipulation. The stipulation shall constitute an appearance by any defendant who is a party to it. An extension by stipulation will not affect other deadlines established by the West Virginia Rules of Civil Procedure, these Trial Court Rules, or the court.
Rule 21.01. Application Generally.
This Rule applies to all eligible guardian ad litem appointments in circuit court, family court and magistrate court. This rule does not apply to guardians ad litem appointed in abuse and neglect proceedings.
Rule 21.02. Appointments Generally.
A guardian ad litem shall be selected independently of any nomination by the parties or counsel.
Appointed guardians ad litem may (a) serve on a voluntary basis without compensation, (b) be paid by a litigant or a litigant-parent of an infant for whom the appointment is made if the litigant or litigant-parent is not an indigent person, or (c) be paid by the Supreme Court of Appeals as provided in rule 21.05.
Rule 21.03. Duties Generally.
A guardian ad litem shall make a full and independent investigation of the facts involved in the proceeding and make recommendations to the court by testimony or in writing, unless otherwise ordered by the court.
Rule 21.04. Definitions.
For purposes of this Rule, the following definitions shall apply:
(a)"Indigent person" person who qualifies for a waiver of fees pursuant to the provisions of W. Va. Code § 59-2-1.
(b) "Infant" person under the age of eighteen (18) years.
(c) "Incarcerated person" any person who is being held against the person’s will in any facility operated under the authority of any governmental authority in the United States.
(d) "Incompetent person" any person who is admitted to a mental health facility or has been found by the court to be incompetent.
Rule 21.05. Eligibility for a Supreme Court-Paid Guardian Ad Litem.
To be eligible for Supreme Court payment, an attorney must serve as the appointed guardian ad litem, and the person for whom the guardian is appointed must be:
(a) an infant-party who is indigent;
(b) an infant of a party who is indigent or parties who are indigent, provided however, if both parents are parties to the action, both parents must be indigent;
(c) an incarcerated person who is indigent; or
(d) an incompetent person who is indigent;
provided however, in a domestic relations case the cost of a guardian ad litem for a party or an infant of the parties may be ordered to be paid by a non-indigent party.
The appointment shall end automatically when a person for whom a guardian ad litem has been appointed either (a) is no longer indigent, or is an infant of a party or parties who are no longer indigent, (b) reaches the age of eighteen (18) years, (c) is no longer an incarcerated person, (d) is released from a mental health facility, or (e) is found by the court to have regained competency. The guardian ad litem shall notify the appointing court when an appointment has been automatically terminated.
Rule 21.06. Compensation for a Supreme Court-Paid Guardian Ad Litem
Payment shall be made from Supreme Court funds.
Supreme Court-paid guardians ad litem shall be compensated at $45 per hour for out-of-court services, and $65 per hour for in-court services.
The total compensation paid to a guardian ad litem appointed pursuant to the provisions of this rule shall not exceed $1,200 ("One Thousand Two Hundred") per appointment as of July 1, 2007. The Court will not reimburse the cost of office expenses including but not limited to copying costs, postage, long distance telephone calls and/or fees charged for invoice preparation. Mileage will be reimbursed at the standard rate per mile as approved by the Supreme Court. The total compensation paid to a guardian ad litem appointed on behalf of a child for services provided between July 1, 2001 through October 7, 2004 shall not exceed $500 ("Five Hundred Dollars").
Requests for payment shall be made on forms provided by the Administrative Director of the Court. Requests for payment shall be reviewed and approved by order of the appointing court prior to submission to the Administrative Director of the Court for payment.
The Administrative Director of the Court shall have the authority to approve and pay compensation in excess of the amounts stated above in exceptional cases and for good cause shown. Requests for excess compensation shall be made by the appointing judge and sent to the Administrative Director of the Court.
As circumstances may warrant, the court in its discretion may at any time during the proceedings tax the costs of the appointment of a guardian ad litem to the parties and require that any compensation previously paid from court funds be refunded to the Administrative Director of the Court.
Amended by order entered and effective November 7, 2007.
22.01 Motions, Responses, and Supporting Memoranda
All motions and responses shall be concise; shall state the
relief requested precisely; shall be filed in accordance with the time frames set
forth in W.Va. R.Civ.P. 6(d); and may be accompanied by a supporting memorandum of not
more than twenty (20) pages in length, double- spaced, and by copies of depositions (or
pertinent portions thereof), admissions, documents, affidavits, and other such materials
upon which the motion relies. The court for good cause shown may allow a supporting
memorandum to exceed twenty (20) pages. In addition to filing and serving on opposing
counsel and unrepresented parties, counsel shall deliver to the assigned judge copies of
each motion, response, supporting memorandum, and supporting documents or materials.
22.02 Motions to Dismiss
Motions to dismiss may be given priority status, provided
they are designated prominently as a motion to dismiss and filed as a separate motion.
22.03 Hearings on Motions
The court may require or permit hearings on motions,
and, with permission of the presiding judicial officer, the hearings may be by telephone.
Whenever the court enters an order denying or granting a motion without a hearing, all
parties shall be forthwith notified by the court of such order.
22.04 Action on Motions
All motions shall be decided expeditiously to facilitate compliance with the deadlines established by the scheduling order. Any motion requiring immediate disposition shall be called to the attention of the court by the party filing such motion. Failure of the court to rule expeditiously on a dispositive motion may be good cause for modification of a scheduling order.
22.05 Effect of Failure to Appear at Oral Argument or Hearing
If any of the parties fail to appear at an oral argument or hearing, without prior showing of good cause for non-appearance, the court may proceed to hear and rule on the motion.
23.01 Non-Jury Matters
Evidence with respect to issues not triable of right by a jury should be heard by the court if practicable. If not practicable, any such issue may be heard by the court on depositions, or the evidence may be taken before a commissioner appointed by the court. A commissioner shall have power to rule upon the admissibility of evidence, with the further right at any time to obtain a summary ruling from the court, or from the judge thereof, upon any question relating thereto. A commissioner shall promptly make such report as the court may require as to such issues, and the court shall enter such judgment thereon as it may deem proper.
The evidence taken before the court on such issues shall, unless waived by the parties, be taken down by the official reporter of the court or, when there is reference to a commissioner, by such official reporter or by any other competent reporter agreed to by the parties in interest or designated by the commissioner, and the evidence or such part or parts thereof as may be required shall in all such cases be promptly transcribed by the reporter as provided for in respect to other matters; and like reporting charges for such actions shall be made, as in other actions, collected and accounted for.
The entire record as thus made up shall be available to any party on petition for appeal.
23.02 Cases to be Tried by a Jury: Proposed Jury Instructions; Proposed Verdict Form
Unless otherwise ordered by the presiding judicial officer, not less than three (3) business days prior to the trial date, counsel shall, in jury cases, submit to the court proposed jury instructions with supporting statutory and case authority, special interrogatories, and a verdict form. Counsel shall exchange copies of the proposed instructions, special interrogatories and verdict form prior to their submission to the court. Submissions pursuant to this rule shall not be filed and made a part of the record, unless ordered by the judicial officer.
23.03 Voir Dire
(a) The attorneys conducting the case shall be permitted to ask voir dire questions of the prospective jury panel members unless the presiding judicial officer finds that there are justifiable reasons to deny such attorney voir dire. The attorneys shall advise the judicial officer of the subject matter of the voir dire questions at such time prior to the actual questioning of the prospective jury panel as the judicial officer may designate. The judicial officer may allow individual voir dire by the attorneys upon a showing of good cause or where questioning such juror in open court in the presence of the other jury panel members would be prejudicial or cause undue embarrassment to the prospective juror.
(b) If attorney-conducted voir dire is not permitted, the attorneys conducting the case may request that the judicial officer ask specific additional or supplemental voir dire questions of the prospective jury members.
(c) Attorneys may lodge objections to the exercise of judicial discretion in limiting voir dire or to prospective questions at any time prior to and during the examination of prospective jury members. Objections shall be made on the record.
23.04 Opening Statements and Closing Arguments
(a) Opening Statements. At the commencement of the trial in a civil action, the party upon whom rests the burden of proof may state, without argument, its claim and the evidence expected to support it. The adverse party may then state, without argument, its defense and the evidence expected to sustain it. If the trial is to the jury, unless the court directs otherwise the opening statements shall be made immediately after the jury is impaneled. If the trial is to the court, the opening statements shall be made immediately after the case is called for trial. For good cause shown, the court, on request by the adverse party, may defer the opening statement for the adverse party until the time for commencing presentation of that adverse party's direct evidence. Opening statements shall be subject to time limitations imposed by the court. In actions involving several parties and unusual procedures, the court, after conferring with the parties to the action, shall direct the order and time of the opening statements in a manner appearing just and proper.
(b) Closing Arguments. The right to open and close the arguments
shall belong to the party who has the burden of proof, without regard to whether the
defendant offers evidence. Where each of the parties has the burden of proof on one or
more issues, the judicial officer shall determine the order of arguments. In actions
involving several parties and unusual procedures, the court, after conferring with
attorneys for the parties, shall determine the order of arguments in a manner appearing
just and proper. Arguments shall be subject to time limitations imposed by the judicial
officer, giving due consideration to the length of the trial, the number of witnesses and
exhibits, the complexity of issues, and the nature of the case. No more than two (2)
attorneys on each side shall argue the case, without leave of the court.
The opening argument of plaintiff before the jury shall be a fair statement of plaintiff's case and shall consume at least one-half of the entire time allotted to plaintiff's counsel for argument. In the event that one-half of the allotted time is not used, one-half shall nevertheless be charged by the court to plaintiff's opening argument.
After plaintiff's opening argument, counsel for defendant may elect to argue the case or may decline. If counsel for defendant declines to present argument, the case will be submitted without further argument by plaintiff or defendant.
Counsel may refer to the instructions to juries in their argument, but may not argue against the correctness of any instruction. The court in its discretion may reread one or more of the instructions. Counsel may not comment upon any evidence ruled out, nor misquote the evidence, nor make statements of fact dehors the record, nor contend before the jury for any theory of the case that has been overruled. Counsel shall not be interrupted in argument by opposing counsel, except as may be necessary to bring to the court's attention objection to any statement to the jury made by opposing counsel and to obtain a ruling on such objection. No portion of a lawbook shall be read to the jury by counsel.
23.05 Stipulations
Unless otherwise ordered, stipulations must be in writing, signed by the parties making them or their counsel, and promptly filed with the clerk.
24. PREPARATION AND SUBMISSION OF ORDERS
24.01 Generally
Unless otherwise directed by the presiding judicial
officer, all orders shall be submitted to the judicial officer promptly, but no later than
eleven (11) days after having been directed to do so by the court. When counsel
responsible for the preparation and presentation of an order unreasonably delays or
withholds its presentation, the order may then be prepared and entered by the judicial
officer.
(b) Except for good cause or unless otherwise determined by the
judicial officer, no order may be presented for entry unless it bears the signature of all
counsel and unrepresented parties.
(c) Although it is preferred that orders be entered in accordance
with subsection (b), unless the judicial officer otherwise directs, counsel responsible
for the preparation and presentation of an order may submit the original of the proposed
order to the judicial officer within eleven (11) days, with a copy to opposing counsel
along with a notice to note objections and exceptions to the order within five (5) days
after receipt of the proposed order or such lesser time as the judicial officer directs.
Opposing counsel shall notify the presiding judicial officer, in writing, of his or her
approval of or objection to the order or any portion thereof. In the event this subsection
is utilized, the judicial officer shall consider the order for entry upon approval by all
counsel, or after five (5) days from its receipt, if no objection is received by the
judicial officer.
(d) In the event counsel has any objections regarding the
wording or content of a proposed order, counsel shall have the affirmative duty of
contacting the preparer thereof before contacting the judicial officer in an effort to
seek a resolution of the conflict. If the conflict cannot be resolved in this manner,
counsel having an objection shall promptly submit a proposed order to the judicial officer
and opposing counsel as set forth in subsection (c) along with a letter to the judicial
officer, indicating the reason for the change(s). Within five (5) days following receipt
of objections and the responsive proposed order, all counsel shall file a response to the
second proposed order. If the judicial officer determines that a hearing is necessary to
resolve the conflict, counsel objecting to the order shall be responsible for promptly
scheduling the same. Objecting, proposing modifications, or agreeing to the form of a
proposed order shall not affect a party's rights to appeal the substance of the order.
25.01 Scope
These rules shall govern mediation of civil cases in the circuit courts, including appeals and administrative appeals, but excluding domestic relations matters.
25.02 Mediation Defined
Mediation is an informal, non-adversarial process whereby a
neutral third person, the mediator, assists parties to a dispute to resolve by agreement
some or all of the differences between them. In mediation, decision-making authority
remains with the parties; the mediator has no authority to render a judgment on any issue
of the dispute. The role of the mediator is to encourage and assist the parties to reach
their own mutually acceptable settlement by facilitating communication, helping to clarify
issues and interests, identifying what additional information should be collected or
exchanged, fostering joint problem-solving, exploring settlement alternatives, and other
similar means. The procedures for mediation are extremely flexible, and may be tailored to
fit the needs of the parties to a particular dispute.
25.03 Selection of Cases for Mediation
Pursuant to these rules and W.Va. R.Civ.P. 16, a court may, on its own motion, upon motion of any party, or by stipulation of the parties, refer a case to mediation. Upon entry of an order referring a case to mediation, the parties shall have fifteen (15) days within which to file a written objection, specifying the grounds. The court shall promptly consider any such objection, and may modify its original order for good cause shown. A case ordered for mediation shall remain on the court docket and the trial calendar.
25.04 Listing of Mediators
The West Virginia State Bar shall maintain and make available to circuit courts, interested parties, and the public a listing of persons willing and qualified to serve as mediators in the circuit courts. The State Bar shall establish minimum qualifications for training and experience, application procedures and fees, and other appropriate requirements for persons interested in being listed. The listing shall identify those persons who are willing to serve as mediators on a volunteer basis (i.e., without compensation). The listing shall be open to all persons who meet the qualifications and complete the application required by the State Bar.
25.05 Selection of Mediator
Within fifteen (15) days after entry of an order or stipulation referring a case to mediation, the parties, upon approval of the court, may choose their own mediator, who may or may not be a person listed on the State Bar listing. In the absence of such agreement, the court shall designate the mediator from the State Bar listing, either by rotation or by some other neutral administrative procedure established by administrative order of the chief judge of the circuit court.
25.06 Compensation of Mediator
If the parties by their own agreement choose a mediator who
requires compensation, then the parties shall by written agreement determine how the
mediator will be compensated. If the court designates the mediator, then it shall whenever
possible select a mediator who is willing to serve without compensation. If it has
established a budget approved by the Supreme Court of Appeals for this purpose, the court
may reimburse a volunteer mediator for reasonable and necessary expenses, according to
Supreme Court of Appeals travel regulations. If a volunteer mediator is not available,
then the court shall inquire of the parties whether they are willing to pay the fees of a
mediator. If so, then either the parties by stipulation or the court shall select the
mediator, and the parties by written agreement shall determine how the mediator will be
compensated.
25.07 Mediator Disqualification
A mediator shall be subject to Canon 3 of the Code of Judicial
Conduct regarding disqualification for partiality or conflict of interest. Any party may
move the court to disqualify a mediator for good cause. In the event a mediator is
disqualified, the parties or the court shall select a replacement in accordance with TCR
25.05 and 25.06.
25.08 Provision of Preliminary Information to the Mediator
The court may require the parties to provide pertinent information to the mediator prior to the first mediation session. Such information may include, but is not limited to: (1) copies of pleadings, transcripts, or other litigation-related documents or (2) a confidential statement summarizing a party's position on the issues, status of settlement discussions, and what relief would constitute an acceptable settlement.
25.09 Time Frames for Conduct of Mediation
Unless otherwise agreed by the parties and the mediator or ordered by the court, the first mediation session shall be conducted within sixty (60) days after appointment of the mediator. Mediation shall be completed within forty-five (45) days after the first mediation session, unless extended by agreement of the parties and the mediator or by order of the court. The mediator is empowered to set the date and time of all mediation sessions, upon reasonable notice to the parties.
25.10 Appearances; Sanctions
The following persons, if furnished reasonable notice, are required to appear at any mediation session scheduled by the mediator, unless excused by the mediator or the court: (1) each party or the party's representative having full authority to settle without further consultation; (2) each party's counsel of record; and (3) a representative with settlement authority of the insurance carrier for any insured party. If a party or its representative, counsel, or insurance carrier fails to appear at a duly noticed mediation session without good cause, the court upon motion may impose sanctions, including an award of reasonable mediator and attorney fees and other costs, against the responsible party.
25.11 Participation
No party may be compelled by these rules, the court, or the mediator to settle a case involuntarily or against the party's own judgment or interest. All parties involved in mediation, however, and their respective representatives, counsel, and insurance carriers shall be prepared to negotiate openly and knowledgeably about the case in a mutual effort to reach a fair and reasonable settlement.
25.12 Confidentiality of Mediation Process
Mediation shall be regarded as confidential settlement
negotiations, subject to W.Va. R.Evid. 408. A mediator shall maintain and preserve the
confidentiality of all mediation proceedings and records. Confidentiality as to
opposing parties within a mediation session shall be maintained in a manner
agreed upon by the parties and mediator. For example, all information may
be kept confidential unless disclosure is specifically authorized by the party,
or, all information may be shared unless specifically prohibited by the party. A mediator may not
be subpoenaed or called to testify or otherwise be subject to process requiring disclosure
of confidential information in any proceeding relating to or arising out of the dispute
mediated. History. Amended by order effective March 8,
2004.
25.13 Immunity
A person acting as mediator under these rules shall have immunity in the same manner and to the same extent as a circuit judge.
25.14 Enforceability of Settlement Agreement
If the parties reach a settlement and execute a written agreement, the agreement is enforceable in the same manner as any other written contract.
25.15 Report of Mediator
Within ten (10) days after mediation is completed or terminated, the mediator shall report to the court the outcome of the mediation. With the consent of the parties, the mediator may identify any pending motions, discovery, or issues which, if resolved, would facilitate the possibility of settlement.
25.16 Statistical Information
The Supreme Court of Appeals shall determine the need and method for statistical reporting on disputes referred for mediation under these rules. The circuit courts, mediators, parties, and counsel shall cooperate with requests for information under this rule.
There is hereby adopted a process for efficiently managing and resolving mass litigation which includes the establishment of a Mass Litigation Panel.
The Mass Litigation Panel "Panel" consists of seven (7) active or senior status circuit court judges who shall be appointed by the Chief Justice, with the approval of the Supreme Court of Appeals. Each appointment is for a term of three (3) years, with two (2) judges to be appointed each year; provided however, that beginning in 2009 and in every third year thereafter, three (3) judges shall be appointed. There is no prohibition against serving successive terms. The Chief Justice shall annually designate a Panel member to serve as its Chair to preside over the activities of the Panel and to report to the Supreme Court of Appeals.
(Note: By Order entered June 30, 2009, TCR 26.02 was amended, effective immediately.)
These rules apply to and govern all actions in the circuit courts referred and transferred by the Chief Justice as Mass Litigation to the Panel. These rules shall not be construed to limit the jurisdiction of the circuit courts, as established by law, or as creating any new cause of action.
For purposes of this Rule, the following definitions apply:
(a) "Mass Litigation" — Two (2) or more civil actions pending in one or more circuit courts:
(1) involving common questions of law or fact in mass accidents or single catastrophic events in which a number of people are injured; or
(2) involving common questions of law or fact in "personal injury mass torts" implicating numerous claimants in connection with widely available or mass-marketed products and their manufacture, design, use, implantation, ingestion, or exposure; or
(3) involving common questions of law or fact in "property damage mass torts" implicating numerous claimants in connection with claims for replacement or repair of allegedly defective products, including those in which claimants seek compensation for the failure of the product to perform as intended with resulting damage to the product itself or other property, with or without personal injury overtones; or
(4) involving common questions of law or fact in "economic loss" cases implicating numerous claimants asserting defect claims similar to those in property damage circumstances which are in the nature of consumer fraud or warranty actions on a grand scale including allegations of the existence of a defect without actual product failure or injury; or
(5) involving common questions of law or fact regarding harm or injury allegedly caused to numerous claimants by multiple defendants as a result of alleged nuisances or similar property damage causes of action.
(b) "Liaison Counsel"— Attorneys designated by the Presiding Judge and charged with essentially administrative matters, including communications between the court and other plaintiff or defense counsel; receiving and distributing notices, orders, motions, and briefs for the group; convening meetings of counsel; advising other counsel and unrepresented parties of developments; and otherwise assisting in the coordination of activities and positions.
(c) "Lead Counsel"— Attorneys designated by the Presiding Judge and charged with formulating and presenting positions on substantive and procedural issues during the litigation by initiating and organizing discovery requests and responses; conducting the principal examination of deponents; employing experts; arranging for support services; serving as the principal attorneys at trial for their respective plaintiff or defense group or subgroups; and organizing and coordinating the work of the other attorneys on their respective plaintiff or defense trial team.
(d) "Certificate of Service List" — The document prepared by Liaison Counsel from the Notices of Appearance and information from self-represented parties and certified by the Presiding Judge as the official contact list of counsel and self-represented parties for service or other notice.
(e) "Notice of Appearance" — The document all counsel shall file and serve containing the name and address of the party or parties each counsel represents, the name and address of the attorney, the name of the attorneys law firm, the attorneys West Virginia State Bar Identification Number, if applicable, or pro hac vice admission status, telephone number, fax number, and electronic mail address.
(f) "Notice of Withdrawal" — The document all counsel shall file and serve on all parties, after complying with Trial Court Rule 4.03(b), if counsel no longer represents a party or parties, or after a party is dismissed.
(g) "Presiding Judge" — One or more members of the Panel assigned by order of the Panel Chair, with the advice and consent of the Panel, to preside in Mass Litigation or proceedings therein referred by the Chief Justice to the Panel. "Presiding Judge" also includes an active or senior status circuit court judge or judges recommended by the Panel and assigned by the Chief Justice to assist the Panel in resolving Mass Litigation or proceedings therein.
(h) "Lead Judge"— The judge appointed by order of the Panel Chair, with the advice and consent of the Panel, to lead in Mass Litigation in which more than one Presiding Judge is assigned.
The Panel shall:
(a) develop and implement case management and trial methodologies to fairly and expeditiously resolve Mass Litigation referred to the Panel by the Chief Justice;
(b) preside in Mass Litigation or proceedings therein referred by the Chief Justice;
(c) request the assignment by the Chief Justice of additional active or senior status circuit court judges to assist the Panel in resolving Mass Litigation or proceedings therein as needed, and provide assistance and guidance to such judges when assigned;
(d) recommend for adoption by the Supreme Court of Appeals rules for conducting the business of the Panel as needed;
(e) report periodically to the Chief Justice concerning the Panel's activities;
(f) take such action as is reasonably necessary and incidental to the powers and responsibilities conferred by this rule or by the specific directive of the Chief Justice; and
(g) develop and implement plans for central organization, including, but not limited to staffing, record keeping, and other assistance for the management of Mass Litigation, the transfer and storage of Mass Litigation court files to the appropriate circuit, the implementation of appropriate technology, and the adoption of necessary rules and procedures.
(a)(1) Any party, judge, or the Administrative Director of the Courts may seek a referral of actions as Mass Litigation to the Panel by filing a Motion to Refer to the Mass Litigation Panel in any circuit court in which an action is pending. The motion shall identify the nature of the actions sought to be referred, the number of plaintiffs, the number of defendants, the number of actions pending, the basis for the request, a listing of the particular actions in all the circuits for which a referral is being requested, and, if known, whether additional related actions may be filed in the future.
(2) The motion may be filed within six (6) months after the filing date of the action; provided, however, that a judge or the Administrative Director of the Courts may file the motion at any time, if it is determined the litigation qualifies as Mass Litigation that may be resolved more expeditiously by referral to the Panel.
(3) The motion shall be served on all the parties, including those parties not represented by counsel, all judges in actions which are the subject of the motion, and the Panels Mass Litigation Manager. Any party shall have twenty (20) days after the motion is filed to file a reply memorandum stating its position and opposition, if any. Any affected judge may file a reply memorandum within twenty (20) days thereafter.
(b) The filing of a Motion to Refer to the Mass Litigation Panel shall not operate as a stay of the civil action(s).
(c)(1) After the response periods have expired, the judge of the circuit court in which the Motion to Refer to the Mass Litigation Panel was filed shall direct the clerk of the circuit court to transmit to the Clerk of the Supreme Court of Appeals for filing a copy of the motion and all reply memoranda for review by the Chief Justice. Upon review of the motion and reply memoranda, the Chief Justice may act directly upon the motion or may direct the Panel to conduct a hearing and make recommendations concerning coordinated or consolidated proceedings under this rule.
(2) If the Chief Justice directs, a Panel member or members shall hold a hearing to receive evidence and entertain arguments by the parties or any judge, and shall submit findings of fact and a recommendation to the Chief Justice.
(3) The Chief Justice, whether acting directly upon the motion or upon the recommendation of the Panel member or members, shall enter an order either granting or denying the motion, or providing modified relief. The order shall be filed with the Clerk of the Supreme Court of Appeals who shall send a copy of the order to the Panel Chair and to the clerk(s) of the circuit court(s) where the actions are pending for service on all parties.
(d) Nothing contained in this rule affects the authority of a circuit court judge to act independently under the provisions of W. Va. R.Civ.P. 42.
(a) An order from the Chief Justice granting a Motion to Refer to the Mass Litigation Panel is a transfer of Mass Litigation to the Panel. Upon receipt of the order, the Panel Chair shall, with the advice and consent of the Panel, by order assign a Presiding Judge. If more than one Presiding Judge is assigned, the Panel Chair shall, with the advice and consent of the Panel, by order appoint a Lead Judge, and in such event, to the extent possible, require appropriate measures to be adopted to insure uniformity of decisions, including the requirement for all pre-trial dispositive motions to be decided by a majority of the Presiding Judges assigned to preside in the Mass Litigation or proceedings therein.
(b) If the Panel requests the assignment of additional active or senior status circuit court judges to assist in resolving Mass Litigation or proceedings therein, the request and recommendation shall be filed with the Clerk of the Supreme Court of Appeals and sent to the Chief Justice. The order of assignment by the Chief Justice shall be filed with the Clerk and sent by the Clerk to the Panel Chair and to the clerk of the circuit court where the Mass Litigation is pending for service on all parties.
(c) The Panel Chair may act on any properly filed motions until the Mass Litigation is assigned to a Presiding Judge.
(a) The Presiding Judge is authorized to preside in any circuit in which Mass Litigation or proceedings therein are pending, or in which Mass Litigation or proceedings therein are transferred for purposes consistent with the Panel's case management and trial methodologies.
(b) With the advice and consent of the Panel, the Presiding Judge is authorized to consolidate and/or transfer Mass Litigation or proceedings therein from one circuit to one or more other circuits to facilitate the Panels case management and trial methodologies and to order the transfer of court files to the appropriate circuit.
(c) In the absence of an agreement of the parties, the Presiding Judge is authorized to appoint Liaison Counsel and/or Lead Counsel and, after consultation with all counsel, to determine the method and manner of compensation for Liaison Counsel and/or Lead Counsel.
(d) The Presiding Judge is authorized to adopt a case management order that specifies the use of a Certificate of Service List, Notice of Appearance and/or Notice of Withdrawal and, after considering the due process rights of the parties, to adopt any procedures deemed appropriate to fairly and efficiently manage and resolve Mass Litigation.(a)(1) This procedure applies if the initial order by the Chief Justice granting a Motion to Refer to the Mass Litigation Panel authorizes the Panel to transfer and join with the existing Mass Litigation any similar or related actions subsequently filed in any circuit court.
(2) A Motion to Join in Existing Mass Litigation shall be filed with the clerk of the circuit court(s) where the action(s) sought to be transferred are pending and with the clerk of the circuit court where the existing Mass Litigation is pending. The motion shall set forth the identity and nature of the action(s) sought to be transferred, the number of plaintiffs, the number of defendants, the number of actions pending, the basis for the request, a listing of the particular actions in all the circuits for which a transfer is requested, and, if known, whether additional related actions may be filed in the future. The motion shall be served on all parties, including those not represented by counsel, and sent to all judges in the action(s) sought to be transferred and to the Presiding Judge in the existing Mass Litigation sought to be joined.
(3) The Presiding Judge in the existing Mass Litigation shall, with the advice and consent of the Panel, grant or refuse the motion by written order. The order shall be filed with the clerk of the circuit court where the existing Mass Litigation is pending, and shall be sent to the Panel Chair, and to the clerk(s) of the circuit court(s) where the action(s) sought to be transferred are pending for service on all parties.
(b) If the initial order by the Chief Justice granting a Motion to Refer to the Mass Litigation Panel does not authorize the Panel to transfer and join with the existing Mass Litigation any subsequently filed actions, the procedure under Rule 26.06 shall be followed.
If any Mass Litigation transferred to the Panel is later certified as a class action by any court pursuant to Rule 23, W. Va. R.Civ.P., the Panel may request the Chief Justice to transfer the Mass Litigation from the Panel to the appropriate circuit court.
In each Mass Litigation proceeding, the Presiding Judge shall determine and designate the official court reporter to transcribe proceedings. No other transcriber or transcription shall be permitted without consent of the Presiding Judge.
If these Rules conflict with other rules or statutes, these rules shall apply; otherwise all applicable Rules apply.
27. PUBLIC FUNDING FOR EXPERT
ASSISTANCE IN CHILD ABUSE OR NEGLECT CASES
27.01. Motion and Appointment
Upon motion by a party or upon its own motion, the court may appoint an expert to perform a medical or psychological evaluation and may require such expert to testify, pursuant to West Virginia Code § 49-6-4.
27.02. Compensation of Experts
The court shall by order establish in advance the reasonable fees and expenses to be paid to an expert. Payment shall be as follows: Upon completion of services by an expert, the court shall, by order, direct the State Department of Health and Human Resources to pay for the expert's evaluation, report writing, consultation, or other preparation; and the court shall, by order, direct payment by the Supreme Court's Administrative Office for the expert's fee and expenses entailed in appearing to testify as a witness.
28. Reasonable Efforts and Contrary to the Welfare Findings in Juvenile Cases
28.01. After any juvenile delinquency or abuse and neglect proceeding has been
initiated or transferred to circuit court, any party may contest the making or refusal to
make “reasonable effort” and “contrary to the welfare” findings required by Title IV-E
of the Social Security Act, by any magistrate court, juvenile referee or circuit court at the
initial stages of such proceeding.”
29. RESERVED
CHAPTER 3: CRIMINAL MATTERS
30. CONDITIONS OF RELEASE
30.01 Hearing on Motion for Reconsideration of Conditions of Release
All motions seeking a reconsideration of the conditions of release, including the amount of bail, shall be heard by the presiding judicial officer in accordance with W.Va. R.Crim.P. 46(h)(1).
30.02 Scheduling of Hearings
Hearings will be scheduled consistent with giving notice to any victim as required by W.Va. Code § 61-11A-8 and in conformance with W.Va. R.Crim.P. 46(h).
30.03 Effect of Having Been Released Previous to Indictment
If the defendant has been released on bond or on some other
release conditions before grand jury indictment, these same release conditions shall
continue after a grand jury indictment on the same charges or any charges arising out of
the same events, unless altered or amended by order of the presiding judicial officer
after hearing.
31. BONDING AGENTS AND BAIL BONDS
Reporter's Note: TCR 31.01 applies in magistrate court as
well as in circuit court.
31.01 Generally
A defendant in a criminal case may be admitted to bail in the following ways:
(a) Bail may be posted by the defendant or some other person depositing cash with the circuit clerk or magistrate court clerk; or
(b) Bail may be posted by a recognizance issued pursuant to West Virginia Code §§ 62-1C- 2(b) and 62-1C-4. A recognizance shall be issued in conformance with the following:
(1) The defendant shall sign the recognizance, and it shall also by signed by one or more adult persons owning real property in this State. The judicial officer may also require that justification of surety be provided. When bail is secured by real property:
(A) The circuit clerk or magistrate court clerk shall complete and file a “notice of Bond Encumbrance,” which notice shall substantially comply with the format of Appendix A to these Trial Court Rules, and shall deliver the same to the clerk of the county commission of the county where the subject real estate is located for recordation in the appropriate lien index; and
(B) Upon the circuit or magistrate court's release of the bond on the property serving as surety, the clerk shall file promptly a “Release of the Notice of Bond Encumbrance” with the office of the clerk of the county commission for appropriate recordation. Said release shall substantially comply with the format of Appendix B to these Trial Court Rules. Or
(2) The defendant shall sign the recognizance, and the amount of bail shall be secured by a surety company authorized to do business in this State; or
(c) Bail may be secured in such other form as the judicial officer may determine, including, but not limited to:
(1) Releasing the defendant upon his or her own recognizance pursuant to West Virginia Code § 62-1C-1a; or
(2) In the discretion of the judicial officer, the defendant shall sign the recognizance, with or without surety, and remit a fee of 10% of the bail amount to the circuit clerk or magistrate court clerk. The fee shall be refunded if the defendant meets the conditions of the recognizance. If the defendant does not meet the conditions of the recognizance, the fee shall be remitted to the State Auditor, in the same manner as a bond forfeiture default.
(d) No attorney shall sign as surety on any bond in any criminal case.
(e) Persons authorized to engage in the bonding business in criminal cases in the State of West Virginia on the effective date of House Bill 4148, passed March 13, 2004, shall continue to engage in the business under the local rules and orders under which such person qualified pursuant to the existing provisions of W. Va. Code § 51-10-8. The authority to continue in the bonding business shall continue until such time as the West Virginia Supreme Court of Appeals adopts rules pursuant to the amendments made to W. Va. Code § 51-10-8 by House Bill 4148. Persons intending to make a new application for such qualification shall be entitled to proceed to do so under rules and orders promulgated prior to September 1, 2004 providing therefore, until such time as the West Virginia Supreme Court of Appeals adopts rules pursuant to the amendments made to W. Va. Code § 51-10-8 by House Bill 4148."
32. DISCOVERY AND INSPECTION IN THE CIRCUIT COURTS
32.01 Generally
The purposes of this rule are to expedite the transfer of discoverable material contemplated by the West Virginia Rules of Criminal Procedure between opposing parties in criminal cases in circuit court and to ensure that pretrial discovery motions to the circuit court are filed only when the discovery procedures outlined herein have failed to result in the exchange of all legitimately discoverable material.
It is the intent of this rule to encourage complete and open discovery consistent with applicable statutes, case law, and rules of court at the earliest practicable time. Nothing in this rule should be construed as a limitation on the court's authority to order additional discovery.
32.02 Mandatory Discovery
(a) Exculpatory Evidence. In all criminal cases, the attorney for the State shall advise the attorney for the defendant and provide evidence favorable to the defendant on the issue of the defendant's guilt or punishment without regard to materiality, within the scope of Brady v. Maryland, 373 U.S. 83 (1963), including the existence and substance of any payments, promises of immunity, leniency, preferential treatment, or other inducements made to prospective witnesses, within the scope of United States v. Giglio, 405 U.S. 150 (1972).
(b) Entrapment Defenses and the Discovery of Other Crimes, Wrongs, or Acts Admissible Pursuant to W.Va. R.Evid 404(b). In all criminal cases, the attorney for the State shall advise the defendant of its intention to introduce evidence in its case-in-chief at trial pursuant to W.Va. R.Evid. 404(b). In addition to the requirements of Rule 404(b), if, during the discovery conference or thereafter, the attorney for the defendant advises the attorney for the State that the defense is one of entrapment and provides a synopsis of the evidence of that defense, the attorney for the State shall, within five (5) days or two (2) weeks prior to trial, whichever is later, disclose a synopsis of any other crimes, wrongs, or acts about which the State has information and which is relevant to said defense and intended for use by the State in its case in chief or in rebuttal.
32.03 Discovery Conference
At every arraignment at which the defendant enters a plea
of not guilty or at any other time set by the court, the attorney for the defendant shall
notify the court and the attorney for the State, on the record or thereafter in writing,
whether discovery by the defendant is requested. If discovery is requested, within
fourteen (14) days the attorney for the defendant and the attorney for the State shall
confer in order to comply with W.Va. R.Crim.P. 16, and make available to the opposing
party the items in their custody or control or which by due diligence may become known to
them. This conference shall be in person. If, however, it is impractical to meet in
person, the conference may be conducted via telephone.
The State's right to request discovery from a defendant is
triggered only if the defendant initially seeks discovery, and is confined to the
particular area in which the defendant has sought discovery. Additionally, the State must
have complied with the defendant's initial request before it can request discovery.
(a) Discovery from the State. Unless otherwise limited by the defendant, upon request by counsel for the defendant and at the discovery conference, the attorney for the State shall comply with the State's obligations under W.Va. R.Crim.P. 16, including, but not limited to, the following:
(1) permit defendant's attorney to inspect and copy or photograph any relevant written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody, or control of the government;
(2) with respect to oral statements made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a State or government agent:
(A) provide that portion of any written record containing
the substance of any such relevant oral statement made by the defendant; and
(B) provide the substance of any other such relevant oral
statement made by the defendant which the State intends to offer in evidence at the trial;
(3) furnish to the defendant's attorney a copy of his or her prior criminal record as provided for in W.Va. R. Crim. P. 16(a)(B);
(4) permit the defendant's attorney to inspect and copy documents and tangible objects as provided for in W.Va. R. Crim. P. 16(a)(1)(C);
(5) permit the defendant's attorney to inspect and copy or photograph any results or reports of examinations and tests as provided for in W.Va. R. Crim. P. 16(a)(1)(D);
(6) permit defendant's attorney to inspect and copy or photograph any photographs used in any photograph lineup, show up, photo spread, or any other identification proceedings or, if no such photographs can be produced, the attorney for the state shall notify the defendant's attorney whether any such identification proceeding has taken place and the results thereof;
(7) permit defendant's attorney to inspect and copy or photograph any search warrants and supporting affidavits which resulted in the seizure of evidence which is intended for use by the State as evidence in its case in chief at trial or which was obtained from, or belongs to, the defendant;
(8) inform the defendant's attorney whether any physical evidence intended to be offered in the State's case in chief, that was in the possession of or belongs to the defendant, was seized by the State without a warrant;
(9) advise whether the defendant was a subject of any electronic eavesdrop, wiretap, or any other interception of wire or oral communications, as defined by W.Va. Code §§ 62-1D-1 et seq., during the course of the investigation of the case;
(10) provide the defendant's attorney with a list of the names and addresses of all State witnesses, together with any record of prior convictions of any such witnesses as provided for in W.Va. R. Crim. P. 16(a)(1)(F);
(11) disclose to the defendant's attorney all information relating to expert witnesses for the State as provided for in W.Va. R. Crim. P. 16(a)(1)(E);
(12) permit the attorney for the defendant and any expert selected by the defense to inspect any vehicle, vessel, or aircraft that was allegedly utilized in the commission of any offenses charged if said vehicle, vessel or aircraft is in the custody of any State authority; and
(13) provide to the attorney for the defendant any copies of latent fingerprints, or prints of any type, that have been identified by a State expert as those of the defendant.
(b) Discovery from Defendant. Upon request by the State and within ten (10) days after the State has provided the discovery requested by the defense, unless otherwise directed by the court, the defendant's attorney shall:
(1) permit the attorney for the State to inspect and copy documents and tangible objects as provided for in W.Va. R. Crim. P. 16(b)(1)(A);
(2) permit the attorney for the State to inspect and copy or photograph any results or reports of examinations and tests as provided for in W.Va. R. Crim. P. 16(b)(1)(B);
(3) inform the attorney for the State, in writing, if requested, notice of any alibi defense and other information pertaining thereto as provided for in W.Va. R. Crim.P. 12.1;
(4) provide the attorney for the State, in writing, with notice of any insanity defense and other information pertaining thereto as provided for in W.Va. R. Crim. P. 12.1;
(5) provide the attorney for the State a list of the names and addresses of the witnesses whom the defense intends to call as provided for in W.Va. R. Cri. P. 16(b)(1)(D); and
(6) disclose to the attorney for the State all information relating to expert witnesses for the defendant as provided for in W.Va. R. Crim. P. 16(b)(1)(C).
32.04 Items Not Subject to Disclosure
(a) Except as expressly provided by these rules, these rules do not authorize the discovery or inspection of reports, memoranda, or other internal official documents made by the attorney for the State or other State officials in connection with the investigation or prosecution of the case, or of statements made by State witnesses, or by prospective State witnesses, except as provided in Rule 26.2.
(b) Except as to scientific or medical reports, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or the defendant's attorneys or agents, in connection with the investigation or defense of the case, or of statements made by the defendant, or by the state or defense witnesses, or by prospective State or defense witnesses, to the defendant, the defendant's agent or attorneys, except as provided in Rule 26.2.
32.05 Continuing Duty to Disclose
If, prior to or during trial, any party discovers
additional evidence or material previously requested or ordered, which is subject to
discovery or inspection under this rule, such party shall promptly notify the other party
or that other party's attorney or the court of the existence of the additional evidence or
material as provided for in W.Va. R. Crim. P. 16(c).
32.06 Regulation of Discovery
(a) Upon a sufficient showing, the court may at any time
order that the discovery or inspection be denied, restricted or deferred, or make such
other order as is appropriate. Upon motion by a party, the court may permit the party to
make such showing, in whole or in part, in the form of a written statement to be inspected
by the judge alone. If the court enters an order granting relief following such an ex
parte showing, the entire text of the party's statement shall be sealed and preserved in
the records of the court to be made available to the appellate court in the event of an
appeal.
(b) If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed to comply with this rule,
the court may order such party to permit the discovery or inspection, grant a continuance,
or prohibit the party from introducing evidence not disclosed, or it may enter such other
order as it deems just under the circumstances. The court may specify the time, place and
manner of making the discovery and inspection and may prescribe such terms and conditions
as are just.
32.07 Statement of Witnesses
Statements of witnesses, including material covered by W.Va. R.Crim.P. 26.2, are to be exchanged:
(a) during the time of trial as provided by W.Va. R.Crim.P.
26.2 or
(b) at any time if the parties agree or the court so orders for
good cause shown.
Production of statements of witnesses at a hearing on a motion to suppress evidence will be governed by W.Va. R.Crim.P 12(i).
The attorney for the State shall anticipate the need for and arrange for the transcription of the grand jury testimony of all witnesses who will testify in the State's case in chief, if subject to W.Va. R.Crim.P. 26.2. The State and, where applicable, the defendant shall make such materials and statements available to the other party sufficiently in advance as to avoid any delays and interruptions at trial.
32.08 Exchange of Exhibit Lists
No later than seven (7) days before trial, the parties shall exchange a list of exhibits which they intend to introduce during the presentation of their respective cases in chief. To the extent possible, copies of exhibits shall also be provided to the opposing side, if copies have not previously been provided.
32.09 Additional Motions for Discovery
Except as provided in TCR 32.02, no attorney shall file a discovery motion without first conferring with opposing counsel, and no motion will be considered by the court unless it is accompanied by a certification of such conference and a statement of the moving party's good faith efforts to resolve the subject matter of the motion by agreement with opposing counsel. No additional discovery motions shall be filed for information or material within the scope of this rule unless it is a motion to compel, a motion for protective order, or a motion for an order modifying discovery.
Unless the judicial officer otherwise directs, in lieu of filing the TCR 32.02 material, proof of service on the party to whom the material is directed shall be made by certification of counsel responsible for the case, which certification shall include the name and case number of the case to which it relates, be filed with the clerk of the circuit court, and meet the following minimum requirements for identifying the specific material, provided:
(a) The attorney for the State shall certify that material within the possession or control of the State required by this rule has been provided and identify the categories of material by specific reference to TCR 32.01 and its subparts and TCR 32.02, 32.03, 32.04, 32.05, 32.06, 32.07, 32.08, and 32.09, setting out the number of pages of material so provided as to each said rule.
(b) The attorney for the defendant shall have the same duty as
the attorney for the State to certify that material within the possession or control of
defendant or his or her counsel required by this rule has been so provided and identify
the categories of material by specific references to the applicable rule.
33. ARTICLES OF EVIDENCE
33.01 State's Evidence
If evidence is to be made available by the State for copying or inspection, the attorney for the State shall be responsible for making said evidence available to counsel for the defendant.
34.01 Authorization for Deposition
A motion to authorize a deposition pursuant to W.Va. R.Crim.P. 15 shall, in addition to any other requirements of the Rules of Criminal Procedure, show that counsel for the moving party has personally requested a stipulated order from opposing counsel, which request was refused.
34.02 Incarcerated Defendants
When the defendant is incarcerated in jail and does not
waive the right to appear, the deposition of a witness shall be noticed and held either at
the jail or within the courthouse, or other arrangements shall be made to ensure that the
defendant is present.
35. PUBLIC FUNDING FOR EXPERT ASSISTANCE
35.01 Motion
(a) Who May File. With respect to expert witnesses appointed or approved by the court in accordance with W.Va. R.Crim.P. 28(a) or W.Va. R.Evid. 706(a), the attorney for the State or the attorney for a defendant found indigent or who claims to be without sufficient means to employ an expert necessary for the defense may file a motion requesting the court's advance approval, which is required, for funds to obtain such assistance.
(b) Grounds of Motion. The motion shall state the reasons why the assistance is necessary for an adequate presentation of the case or defense. It may be supported by affidavit.
35.02 Service of Motion
Except as provided in TCR 35.03, the motion shall be served upon
counsel for the opposing party.
35.03 Ex Parte Motion
An ex parte motion shall state with particularity the reasons why it should not be served on the attorney for the opposing party. It shall be presented to the clerk of court, who shall present it to the court. It shall be sealed and shall not be docketed, unless so ordered by the court.
35.04 Judicial Determination of Whether to Proceed Ex Parte
The court shall determine whether the motion demonstrates good cause to proceed ex parte. If the court finds good cause, it shall then decide the merits of the motion, give the attorney for the opposing party such notice of its order as it deems proper and order the appropriate docket entry. If the court does not find good cause to proceed ex parte, it shall order the motion docketed and served.
35.05 Compensation of Experts
The court shall by order establish and approve in advance the reasonable fees and expenses to be paid to an expert. Except as to evaluations pursuant to W.Va. Code § § 27-6A-1(a)-(e) and 62-12-2(e), the expense of which the court shall, by order, direct payment by the State Department of Health and Human Resources, payment shall be as follows:
(a) Expert Requested by the State. Upon completion of services
by such expert, the county prosecuting attorney's office shall pay for the expert's
evaluation, report-writing, consultation, or other preparation. The court shall, by order,
direct payment by the Supreme Court's Administrative Office for the expert's fee and
expenses entailed in appearing to testify as a witness.
(b) Expert Requested by an Indigent Defendant. Upon completion of services by such expert, the court shall, by order, direct payment by Public Defender Services pursuant to W.Va. Code, Chapter 29.
(c) Expert Appointed by the Court on Its Own Motion for the Court's Assistance. Upon completion of services by such expert, the court shall, by order, direct payment by the Supreme Court's Administrative Office.
36. MOTIONS PRACTICE, CRIMINAL
36.01 Motions, Responses, and Supporting Memoranda
All motions and responses shall be concise; shall state the relief requested precisely; and may be accompanied by a supporting memorandum of not more than twenty (20) pages in length, double-spaced, and by copies of documents, affidavits, and other such materials upon which the motion relies. The court for good cause shown may allow a supporting memorandum to exceed twenty (20) pages. In addition to filing and serving on opposing counsel, counsel shall deliver to the assigned judge copies of each motion, response, supporting memorandum, and supporting documents or materials.
36.02 Motions for an Extension of Time
Extensions of time in criminal actions will be granted only if the party seeking the extension files a motion and affidavit demonstrating good cause. Extensions of time by agreement of the parties are not valid in criminal cases.
36.03 Time for Filing Motions
Unless a different time is fixed by statute or the West Virginia Rules of Criminal Procedure, motions must be filed within the time period ordered by the court.
36.04 Time for Filing Responses and Replies
(a) Response. Unless otherwise ordered, a response and any opposing memorandum must be filed within eleven (11) days of service of any motion, except a motion for an extension of time. A memorandum opposing a motion for an extension of time must be filed within five (5) days of service of the motion.
(b) Reply. Except as to motions for an extension of time, a party may choose to file a reply memorandum. A reply memorandum must be limited to matters newly raised in the opposing memorandum. If a party chooses to file a reply, the memorandum must be filed within eleven (11) days of service of the opposing memorandum, unless otherwise ordered by the court.
36.05 Limitation on Memoranda
Memoranda pertaining to motions are limited to a supporting memorandum, an opposing memorandum, and a reply memorandum. Supporting and opposing memoranda must not exceed twenty (20) pages without leave of court. Reply memoranda must not exceed ten (10) pages without leave of court.
37.01 Authority
The West Virginia Constitution, the West Virginia Rules of Criminal Procedure, and the applicable West Virginia statutes govern all rights to a speedy trial.
37.02 Motion for Speedy Trial
All demands for speedy trial, unless otherwise stated in
open court, shall be made in writing as a separate document, containing proper case
caption and case number, signed and dated by counsel. A copy of the demand shall be timely
served on the attorney for the State and shall be filed with the clerk of court, together
with proof of service.
38.01 Procedure for Obtaining Continuance
Cases may not be continued by agreement or stipulation and may be continued only by leave of court. After a case has been set for trial it will not be continued except for good cause which shall be brought to the attention of the court as soon as practicable before the date of the trial.
39.01 Appointment
For good cause and upon the court's own motion or that of a party, the court may appoint an attorney as guardian ad litem for a witness or an alleged victim. The Court shall select any guardian ad litem independently of any nomination by the State or by the defendant.
39.02 Duties
A guardian ad litem shall have such standing and such duties in representing the best interests of a witness or an alleged victim as the court directs of record.
39.03 Compensation
(a) Rule 21.06 of these Rules shall govern compensation for Supreme Court-paid guardians ad litem."
40.01 Authority
In accordance with this rule and W.Va. R.Crim.P. 17.1, the court may require a pretrial conference in criminal cases.
40.02 Purpose
The purposes of a pretrial conference shall include, but not be limited to:
(a) to determine whether the parties intend to proceed to trial or to enter a plea to the original charge, a lesser charge, or an added charge;
(b) to determine whether pretrial motions have been completed;
(c) to stipulate which witnesses may be called at trial and which witnesses may be waived, if any;
(d) to determine the number of trial days required; and
(e) to determine when the case will be ready for trial and disclose any scheduling problems.
40.03 Attendance and Participation at the Pretrial Conference
The defendant and his or her attorney, as well as the
attorney for the State, shall attend the pretrial conference.
41.01 Notice of Change of Plea Hearing
When a change of plea has been negotiated by the parties to a criminal case, counsel will advise the court promptly. The court will set a change of plea date at the earliest possible time. For speedy trial purposes, absent a finding by the court of extraordinary circumstances, the parties to any plea agreement shall be deemed to have stipulated to a tolling of the speedy trial time.
42. TRIAL, CRIMINAL
42.01 Presentation of Statement of Facts and Potential Witnesses
Prior to jury selection, unless otherwise ordered, the prosecutor and counsel for the defense shall each prepare and present to the court and to opposing counsel a statement of facts for the case being tried, which shall include the names of potential witnesses each may call during trial, including the place of residence or the municipal entity, if any, in which they live.
42.02 Presentation of Jury Instructions
Each counsel shall prepare jury instructions, indicating citations and authorities, and if the court directs, verdict forms and special interrogatories, and present them to the presiding judicial officer and serve them on opposing counsel not less than three (3) business days before the day set for trial or at such other times as the presiding judicial officer may order.
42.03 Voir Dire
(a) The attorneys conducting the case shall be permitted to ask voir dire questions of the prospective jury panel members unless the presiding judicial officer finds that there are justifiable reasons to deny such attorney voir dire. The attorneys shall advise the judicial officer of the subject matter of the voir dire questions at such time prior to the actual questioning of the prospective jury panel as the judicial officer may designate. The judicial officer may allow individual voir dire by the attorneys upon a showing of good cause or where questioning such juror in open court in the presence of the other jury panel members would be prejudicial or cause undue embarrassment to the prospective juror.
(b) If attorney-conducted voir dire is not permitted, the attorneys conducting the case may request that the judicial officer ask specific additional or supplemental voir dire questions of the prospective jury members.
(c) Attorneys may lodge objections to the exercise of judicial discretion in limiting voir dire or to prospective questions at any time prior to and during the examination of prospective jury members. Objections shall be made on the record.
42.04 Opening Statements and Closing Arguments
(a) Opening Statements. At the commencement of trial in a criminal action, the State and the defendant may make non-argumentative opening statements as to their theories of the case and the manner in which they expect to offer their evidence. If the trial is to a jury, unless the court directs otherwise the opening statements shall be made immediately after the jury is impaneled. If the trial is to the court, the opening statements shall be made immediately after the case is called for trial. The court, on request by the defendant, may defer the opening statement for a defendant until the time for commencing presentation of that defendant's direct evidence. Opening statements shall be subject to time limitations imposed by the court. If the action involves more than one defendant, the court after conferring with the parties to the action, shall determine the order and time of the opening statements.
(b) Closing Arguments. Counsel may refer to the instructions to juries in their argument, but may not argue against the correctness of any instruction. The court in its discretion may reread one or more of the instructions. Counsel may not comment upon any evidence ruled out, nor misquote the evidence, nor make statements of fact dehors the record, nor contend before the jury for any theory of the case that has been overruled. Counsel shall not be interrupted in argument by opposing counsel, except as may be necessary to bring to the court's attention objection to any statement to the jury made by opposing counsel and to obtain a ruling on such objection. No portion of a lawbook shall be read to the jury by counsel.
The time of argument in any case may be determined and regulated by the court, but the convenience of counsel will be consulted. No more than two attorneys on each side shall argue the case, without leave of the court.
42.05 Stipulations
Unless otherwise ordered, stipulations must be in writing, signed by the parties making them or their counsel, and promptly filed with the clerk.
43. PRESENTENCE INVESTIGATION AND REPORT
43.01 Investigation, Report, and Objections
(a) In all cases where a presentence investigation report is prepared pursuant to W.Va. R.Crim.P. 32 and W.Va. Code § 62-12-7 or where the report is otherwise ordered by the court, the probation officer shall disclose the presentence investigation report to the defendant and to counsel for the defendant and to the attorney for the State not less than ten (10) calendar days prior to sentencing. Within five (5) calendar days thereafter, the parties by counsel shall communicate to the probation officer any objections they may have as to material information, any fact that was either not included or was stated erroneously, or as to the law, or sentencing alternatives and classifications. The communication shall be in writing with a copy served upon opposing counsel or an unrepresented defendant contemporaneously with service upon the probation officer.
(b) After receiving objections, the probation officer may conduct further investigation and make revisions to the presentence report that may be necessary. The officer may require counsel to meet with the officer to discuss unresolved factual and legal issues. Not less than three (3) calendar days prior to sentencing, the probation officer shall submit the presentence report to the sentencing judge. The report shall be accompanied by an addendum setting forth objections that have not been resolved, together with the officer's comments and recommendations. The probation officer shall certify that the contents of the report, including revisions and the addendum, have been disclosed to the defendant and to counsel for the defendant and the State, and that the addendum fairly states any remaining objections.
(c) With the exception of an objection under subsection (a) that has not been resolved, the presentence investigation report may be accepted by the court as accurate. For good cause, however, the court may allow additional objections to be raised at any time before the imposition of sentence. In resolving disputed issues of fact, the court may consider relevant information without regard to its admissibility under the rules of evidence, provided it otherwise has sufficient indicia of reliability.
43.02 Disclosure
(a) The time requirements of this rule may be modified by the court for good cause, except that the ten (10)-day period in TCR 44.01(a) may not be reduced to a period of less than five (5) days prior to sentencing without the consent of the defendant.
(b) Nothing in this rule requires the disclosure of any portions of the presentence report that may not be disclosed under W.Va. R.Cr.P. 32. Subject to the limitations in W.Va. R.Cr.P. 32(c)(3)(A) and (B), upon request of counsel, the probation officer shall provide to counsel all underlying public record information pertaining to the defendant that was gathered by documents obtained and used in the preparation of the presentence report.
(c) The presentence report shall be deemed to have been disclosed (1) when a copy of the report is physically delivered to counsel or (2) three (3) days after a copy of the report is mailed to counsel. When the defendant is unrepresented or is represented by standby counsel, delivery or mailing shall be made to the defendant.
44. PETITION FOR DISCLOSURE OF PRESENTENCE OR PROBATION RECORDS
44.01 Generally
(a) Except as provided in TCR 43.02, no confidential records of the court maintained by the probation office, including presentence and probation supervision records, shall be producible except by written petition to the court particularizing the need for specific information.
(b) When a demand for disclosure of presentence and probation records is made by way of subpoena or other judicial process to a probation officer, the probation officer may petition in writing seeking instructions from the court regarding a response to the subpoena.
(c) No disclosure shall be made except upon order of the court.
APPENDIX A
NOTICE OF BOND ENCUMBRANCE
NOTICE OF BOND ENCUMBRANCE
Take notice that the following person has encumbered the hereinafter described property upon a surety bond before the Circuit Court/Magistrate Court of County, West Virginia. The same constitutes a lien upon said property.
Surety on bond:
Description of property:
(Include reference to Deed Book and Page Number, acreage, lot number, etc.)
Defendant:
Case Number(s):
Amount of surety provided: $
Given under my hand this day of , 19 .
Clerk
of the Circuit/Magistrate Court
of County
APPENDIX B
RELEASE OF NOTICE OF BOND ENCUMBRANCE
RELEASE OF NOTICE OF BOND ENCUMBRANCE
The Notice of Bond Encumbrance dated and recorded in the Office of the Clerk of the County Commission of County, West Virginia, in Book No. , at Page is hereby RELEASED.
The conditions of the bond secured thereby having been fully satisfied.
Clerk
of the Circuit/Magistrate Court
of County
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